Preview
DOCKET NO. UWY-X06-CVI7-5023922-S SUPERIOR COURT
JAMES E. BARBARA and LINA T. BARBARA JUDICIAL DISTRICT OF
WATERBURY COMPLEX
Vv. LITIGATION DOCKET AT
WATERBURY
COLONIAL SURETY COMPANY
February 29, 2024
PLAINTIFF LINA T. BARBARA’s OBJECTION TO COLONIAL SURETY COMPANY’s
MOTION FOR SUMMARY JUDGEMENT
STATE OF CONNECTICUT )
)ss:
COUNTY OF NEW HAVEN )
Plaintiff, Lina T. Barbara, being duly sworn deposes and says:
1 I am one of the plaintiffs in this action, am familiar with the facts as herein
alleged and make this affidavit in opposition to defendant’s motion for summary judgement.
2. The way the Courts have defined “bad faith” to need a showing of “improper
motive” within the context of surety law effectively renders it almost impossible to prove
and fails to make an actual carve out to protect indemnitors from bad faith behavior on the
part of the sureties.
3 And how exactly do you prove improper motive? You need to base it on the
behavior of the individual, their actions and the circumstances. Otherwise all a person with
improper motive has to do is prevent the opposing party from getting anything in writing.
After all if you are making a back door deal, I doubt you will put much in writing and you
certainly don’t provide it in discovery.
4 In this case, bad faith behavior on the part of Colonial’s agents and attorneys
have ensured that it will not have to suffer the consequences of its unethical and immoral
actions.
5 The terms good faith and bad faith are phrases that have commonly
understood meanings in the business world. Every business man assumes that the other is
obligated by law to act in good faith otherwise no one could trust anyone that they didn’t
already know. All contracts are supposed to be governed by good faith no matter the type.
6 To get a bond, sureties require that the contractor owners sign an indemnity
agreement. The one the plaintiffs had to sign is annexed as Exhibit “A” (“IA”). As can be
seen there is no definition for “good faith” so anyone signing this would understand it to be
the standard generally accepted definition of “good faith” and bad faith which is not what
the Courts have held is applicable in the State of Connecticut. No business person in their
right mind would sign an indemnity agreement that defined “bad faith” as improper motive
because that means they can incur expenses on your behalf and you can only dispute it if
you can prove improper motive.
7 That means a surety can settle and pay someone 200X more than what a case
was worth by any reasonable standard yet the indemnitor is still liable because you can not
prove improper motive. This would be true even if the surety representative was friends
with the person being paid. I don’t think this would happen often, but it can if a Court is not
willing to look at the surrounding circumstances and behavior and will only accept proof
that the individual admits that he paid the other person that sum because they were friends.
8 People who engage in back door deals don’t put things in writing that admit
to their crimes.
9 I honestly don’t understand what proof the Court expected us to be able to
obtain from defense counsel (“McElroy”) and Colonial to prove “improper motive”. Absent
a signed note from the surety stating I am settling this case so I can get a certain amount of
future business from Gotham, how can you prove actual motive? And if Colonial had such
give me
anote I am sure it would never give it to me. They have gone to great lengths to
nothing. I would assume one must look to the circumstances and at McElroy’s and
Colonial’s actions to determine if Colonial had “improper motive”.
10. I would argue that the plaintiffs (“Barbaras”) did not have an adequate
opportunity to fully litigate their claims in the Colonial Surety v. Phoenix matter
(consolidated case) and it is due to McElroy’s actions.
1. I would also proffer that McElroy’s actions through their assigned attorney
Steven Lapp (“Lapp”) demonstrate that improper motive was present and a back door deal
happened.
12. The Court must remember that Colonial and McElroy controlled the entire
situation. Defendant (“Colonial”) sued Phoenix Contracting Group, Inc. and the Barbaras
(“Indemnity action”) a few days before Gotham Greenwich Construction Co, LLC v.
Phoenix Contracting Group, Inc., et al, (Sup. Ct, N.Y. Cnty, Index Number 651937/2010)
[“Gotham action”] was filed. The Indemnity action was the case being relied upon by
Colonial in this motion for summary judgment which had been consolidated with this
instant action.
13. Colonial had McElroy handle the Indemnity action and the Gotham action out
of their Hartford office. Colonial should have had another firm handle the Indemnity action
instead of having McElroy handle it, especially because McElroy was handling the Gotham
action and it needed plaintiffs’ cooperation in the Gotham action.
14. We (“plaintiffs”) were very angry that Colonial was suing us because we had
destroyed ourselves financially because Colonial’s agents and attorneys kept on telling us
that we needed to keep on paying for extra out of scope work and material in order for the
bond to walk. Gotham was not paying us directly for monies it owed Phoenix for the work
Phoenix had already done and Gotham had agreed to pay Phoenix directly.
15. Examples of some steps we took are I have an over $20,000 judgment against
me for fertility treatment because | had to pay for extra material and labor instead of my
health insurance. I needed to borrow money from my inlaws to reinstate the insurance
because it was towards the end of my pregnancy and I needed tests. We have a judgement
against my husband and myself from a business line of credit we used because we had to
pay for Gotham’s extra out of scope material and labor. I think the judgment was obtained
in 2012 and with pre judgment interest and costs was over $600,000. But I figure that with
post judgment interest it’s probably around $1,000,000.00 owed to the Bank. The banks PJR
on our house predates Colonial’s. The Barbaras cashed in their retirement to use for the
business. Having us have to deal with the same firm and office for both cases was not good
for the Barbaras but McElroy used it to it’s advantage.
16. Despite our being angry Colonial wanted our cooperation so they told us that
it benefitted both of us if we had a joint defense agreement. I told them that by suing us in
the Indemnity action at the same time as the Gotham action was going to interfere with my
ability to fight Gotham. We agreed to the joint defense but since there was language we
found objectionable in the actual written agreement it was agreed that we would mount a
joint defense but to watch what we put in writing because it would be discoverable by
Gotham.
17. I represented Phoenix in the Gotham action as counsel and accordingly I have
personal knowledge of the happenings in that action and all documents I produced from that
matter were pulled from either my files or the NYSCEF website which is the online filing
system for certain New York State cases.
18. Colonial deliberately took advantage of the situation and would use this joint
defense so we would not obtain any discovery from Colonial on the Indemnity action.
Douglas Poulin, the partner from McElroy handling the Indemnity action, wanted to
increase our PJR and asked for a in camera review of the documents. I agreed to allow him
to increase our PJR amount but asked him for a copy of the bills. I also told him he could
redact it if he wanted. He never gave them to me and I didn’t push it because it was my
belief that anything that happened on the Indemnity action would just result in us having to
pay more of the money we got from Gotham to Colonial but that we would still get money
from Gotham. If we had been dealing with two different firms McElroy wouldn’t have been
able to manipulate us like it did and we would likely have taken greater steps to protect
ourselves.
19. I told Steven Lapp (“Lapp”) the associate handling the Gotham action for
McElroy that I wanted Beacon’s reports and he told me that if he gave it to me that it would
be discoverable because it wouldn’t be protected by privilege. and they didn’t want Gotham
to have it. As a result, I never asked for it in discovery from Colonial because it was my
belief that we were united in interest against Gotham.
20. The Indemnity action just kept on going forward with little being done
because I was focused on trying to defend Phoenix and Colonial so I could pay Colonial.
We would occasionally make a motion to amend our answer which Poulin opposed and it
was denied because we were unable to get upstairs to the court room on time due to the long
wait at security.
21. In the commercial construction business you have to finance the work from
monies you got from previous jobs because you don’t get paid for the work you do for about
6 weeks. Being out $5 million dollars because of the amount of extra material and labor we
had to pay for is a serious problem. If not for the bond and Colonial’s directions, we would
have liened the job and walked off until they fixed all their jobsite conditions. But we didn’t
because we were told that we were owed a lot of money and we would get it after Colonial
got out of the case. Colonial just refused to get out of the case.
22. Because of the IA, you are essentially stuck doing whatever the bonding
company wants until the bond is discharged at the end of the contract because you have
signed the IA personally and they can rack up costs you are responsible for paying.
23. The Barbaras and Phoenix were in that position. Colonial was telling us the
only way the bond would “walk” was if we kept on providing the extra out of scope
material and extra labor until it was done. We had to do what they told us to do because
they have the IA hanging over our heads.
24. Our only alternative choice would have been to file for bankruptcy, which in
hindsight would have been better for us but we didn’t. Gotham owed us over $5 million in
backcharges. Colonial and McElroy needed us to stay in action, so it kept on telling us that
we went above and beyond the requirements of the Subcontract. They told us that it would
be a change order negotiation and that the bond would run because there was so much
Owner Default. We thought we would just get through it and then get our change orders
after Colonial was removed from the case for lack of liability.
25. We needed to get Colonial out of the picture in order to get our backcharges.
because Gotham didn’t need to deal with Phoenix it only needed to deal with Colonial. We
were held hostage to Lapp making a motion for summary judgment which he assured us he
would be making after discovery was over in the Gotham action.
26. One has to look at the totality of Colonial’s and McElroy’s actions to see
Colonial’s improper motive.
27. Colonial stayed in the Gotham action despite being able to get out by a pre
answer motion to dismiss because it had been aware of substantial owner default which
meant Gotham could not meet a condition precedent of the bond. The fact that the Barbaras
had no money and wasn’t reimbursing Colonial, Colonial should have gotten right out
because it would just bleed money by staying in. By deciding not to move for a pre answer
dismissal, Colonial was deciding to potentially pay an additional hundreds of thousands of
dollars versus less than $100,000. I know this because when Colonial got the PRJ against
us originally they had only billed a little over $90,000. Staying in was a bad business
decision and wouldn’t have happened unless Colonial had some other motive for staying in
the Gotham action. Gotham is a large construction manager that requires hundreds of
millions dollars of bonds a year and Colonial wanted some of that business.
28. Colonial as an experienced surety knew that it didn’t have any liability under
the bond because a condition precedent of the bond was that there be no owner default and
there was plenty of owner default. Wayne Nunziata the president of Colonial knew this
because we had told him and Jim McInerney of Beacon Consulting Company (the company
Colonial hired to investigate the potential bond claim) investigated the situation and
reported back to him prior to a meeting held between Gotham, Phoenix and Colonial.
Based upon Beacon’s investigation, Colonial declined to sign a consent of surety to put
some additional labor on the project. If Phoenix had been in default and at fault, Colonial
would have had to sign the consent of surety but it didn’t. This letter has been provided to
the Court numerous times in the past (a copy is attached as Exhibit “B”) and it is a true and
accurate copy of the document I had received through discovery or was in my Phoenix files.
Colonial indicated in the letter that extensions of time would be needed and extra work was
done means out of scope work and material which means failure to comply with the jobsite
conditions which means Owner default.
29. Colonial knew that if it moved for a pre answer dismissal that Gotham would
never give them any business because Gotham would only want to work with companies
that would work with them. So Colonial remained in the litigation which would cause the
plaintiffs to bear substantial litigation costs. It didn’t concern Colonial because it knew that
it had no liability under the bond and the cost of paying for the litigation costs were likely
worth it for this new business relationship.
30. Colonial didn’t have any liability under the bonds and Lapp knew that when
he settled the Gotham action. Lapp moved by Order to Show Cause instead of by notice to
enforce the settlement agreement because he needed to have an order that extended the time
to file a motion for summary judgment in case the motion was denied. Lapp knew that
Colonial had no liability under the bond and he needed to get out if he couldn’t enforce his
agreement with Gotham. A copy of the Order to show cause is annexed as Exhibit “C”.
31. What proves that the settlement agreement made was due to an improper
motive is Lapp’s actions post settlement of the Gotham action. During the Gotham action,
Lapp made only one motion. It was to enforce the settlement agreement. He requested and
provided plenty of discovery without any resistance. In fact he probably requested most of
the discovery and the depositions. I have personally witnessed how Lapp handles
litigation. It all changed once I commenced this action because Colonial had already
ensured that I didn’t get any discovery in the Indemnity action and they wanted to have
summary judgment granted on the Indemnity action without my having the benefit of any
discovery.
32. Lapp engaged in atypical behavior. I have known Lapp since 2012 and we
worked together for a few years on the Gotham action under a joint defense. I know how he
defends a case. Lapp is a good lawyer.
33. Once I started this case, Lapp started doing everything in his power to ensure
that I could not get any discovery. Remember Lapp was the main associate handling the
Gotham action and if there had been a back door deal Lapp would have known about it.
34. There is zealous representation and then there is Lapp’s behavior which far
surpasses zealous representation.
35. As per the necessity of demonstrating an “improper motive” for bad faith to
apply, Colonial was allowed to take self serving actions. Colonial was allowed to be
incompetent. The only thing it wasn’t allowed to do was act upon an improper motive. If
there was no back door deal and no improper motive, Lapp shouldn’t have had any problem
with answering interrogatories, admissions and discovery in this action. He is obligated as
an officer of the Court to follow the law and respond to discovery in good faith but he
didn’t.
36. Lapp went to great lengths to avoid admitting or denying anything personally
until Colonial’s Response to Request for Admissions. He never even filed an answer. He
planned things in a manner to ensure I didn’t get any discovery to oppose his motion for
summary judgment in the Indemnity action. This can be seen in the Court’s docket for both
this case and the Indemnity action.
37. As indicated above, no discovery was done in the Indemnity action. In fact
my defense of bad faith didn’t even arise in full until after Colonial settled the Gotham
action.
38. On 4/2/14, Colonial filed the certificate of closed pleadings in the Indemnity
action which was more than a year before Colonial settled the Gotham action. I didn’t do
anything about this because honestly I had no idea what a certificate of closed pleadings
was and I just thought worst case scenario we would have to pay more of our settlement
with Gotham towards Colonial. Colonial should have made a motion for a stay until the
Gotham action was completed because the damages were still ongoing but this worked
better for Colonial because it would forestall my ability to be able to request discovery. And
at that point, I was under the illusion that Colonial and Phoenix’s interests were aligned.
And they should have been if Colonial hadn’t had an improper motive.
39, On the day that summary judgment motions were due in the Gotham action,
Colonial settled the Gotham action dismissing all of our affirmative claims and paying
Gotham $100,000. Lapp had told us that he was waiting to do his motion for summary
judgment after discovery was done. He filed an Order to Show Cause on 4/20/15 to enforce
the judgment. We opposed it and Justice Bransten basically ruled that since Phoenix did not
pay money to Colonial to continue with the litigation they had the right to settle it.
Judgment with notice of entry was filed on 12/3/15. We didn’t appeal it because there
didn’t seem to be any point as there was no way that I knew of that we could have found
proof that Colonial and Gotham made a back door deal.
40. After this we spent quite a few months trying to process the fact that our
bonding company, that we had destroyed ourselves financially to protect had just given
away our ability to pay them. I don’t remember what caused me to think about it but I
realized that Colonial still had the Indemnity action against us. They didn’t discontinue it so
they were still coming after us after they took away the only way we had of paying them.
We tried to move to reopen the case so we could do discovery and get some money back.
The motion was made on 6/21/16 and denied on 12/19/16. Colonial should have told us
after they gave away our affirmative claims, that it was willing to discontinue its indemnity
action but it didn’t, instead they continued on coming after us for the monies that we didn’t
10
want them to spend on work they didn’t need to do. Colonial did not spend one cent on the
job, only investigation, legal and settlement amount.
41. After my motion was denied I went to ask for help at the Courthouse and it
was suggested to me that nothing was stopping me from filing my own action so I did. I
filed this one on 4/4/17 and one on behalf of Phoenix in New York in March 2017,
42. Lapp was desperately trying to avoid giving me anything for discovery or to
admit anything because he must have known that a back door deal was made. He kept on
trying to get this case dismissed or stayed so I couldn’t get any discovery. Lapp made a
motion to dismiss on 7/26/17 which was denied on 2/9/18, see 103 in Court Docket. Lapp
didn’t want to do discovery. He asked to continue the status conference of 3/9/18 which the
Court granted and then on 3/20/18 he did a Request to Revise the Complaint on things that
were really more about form. On 11/8/18 Judge Stevens issued an Order indicating what we
needed to do to revise our complaint. On 4/26/18 the Barbaras submitted a scheduling order
at the direction of Judge Stevens and on 4/27/18 Lapp made a motion to dismiss or stay this
action. This motion to dismiss was denied on 10/30/18 (see, 126 of the Court docket). On
11/19/18 Lapp made an application to transfer this case to the complex litigation docket.
43. On 12/22/17, Lapp filed a motion for summary judgment in the Indemnity
action. He wanted to make sure I had to oppose his motion before I had an opportunity to
get discovery from him on this action.
44. The cases were joined and sent to this Complex Litigation Docket. A
scheduling order was issued by this Court on 2/1/19 which is attached as Exhibit “D*.
45. As per the Scheduling Order, the parties were supposed to exchange
discovery responses by 5/31/19. Lapp requested that we extend the responses due date to
6/30/19 and we stipulated to it. On 6/14/19, two weeks before our responses for discovery
ll
were due, Lapp filed a RFA for the motion for summary judgment. .
46. So Lapp deliberately made sure that we would have limited time with his
discovery responses before we could oppose his motion for summary judgment. If that is all
he did that would have been bad but not completely over the top. But Lapp’s discovery
responses were basically all objections which would require me to make a motion to compel
any kind of response. (see, Exhibit “E”)
47. The Barbaras moved the Court on 6/27/19 to amend the scheduling order to
continue the motion for summary judgment until after the discovery was done in this matter
and this Court denied it on 7/9/19. So I had to oppose the motion for summary judgment
without the benefit of any discovery while I was responding to discovery that was due.
48. This was all clearly planned by Lapp to ensure that I couldn’t have the benefit
of any discovery to respond to the motion for summary judgment to prove improper motive.
49. I would argue that the Indemnity action was not fully litigated because I never
had an opportunity to get discovery on it before I had to respond to it and this was
engineered by Lapp. This was unethical.
50. Barbaras filed our objection to the motion for summary judgment on the
Indemnity action on 8/12/19 without receiving any discovery. On 8/22/19 Colonial filed a
motion for summary judgment in this action on res judicata grounds, again so I wouldn’t
have the time to move to compel discovery.
51. On 7/1/19, Lapp filed his Objections and Responses to our Interrogatories.
Entry numbers 149 and 150. It is 65 pages of objections. Lapp did not provide me with a
single document despite a request to provide me with certain documents. Most of the
responses were being withheld because of an objection. You just need to read the document
to see how dishonest Lapp is being. (see, Exhibit “#' “). He objected to almost all of my
12
directions, even definitions. He would object to most of our interrogatories seeking
information on whether Colonial started receiving surety business from Gotham saying it
was irrelevant . I flat out asked whether or not Colonial or Partners Re received any new
surety business as a result of referrals from Gotham. Lapp objected, apparently the term
“new surety business” is vague and ambiguous. And a response to the question would
somehow give me information that would threaten Colonial’s competitive business
advantage. Also supposedly it wasn’t relevant if Colonial got business referred by Gotham
when I am claiming they made a back door deal for new surety business. The entire
document is like that. Attorneys are supposed to make a good faith attempt to answer the
questions, not do what he did. If Colonial got referrals because of Gotham, Lapp is
supposed to tell me. If there were no referrals then just say that. Lapp just wanted to put up
a blockade and give me no information because he was hiding a back door deal. This kind
of behavior shows that there is discovery in Colonial’s possession that there was a back
door deal but Lapp just wouldn’t give it to me.
52. Lapp controlled when he put the RFA for the motion for summary judgment
in the Indemnity action and he had no limitations on when it had to be done. He
deliberately timed it so I wouldn’t be able to get discovery in time to oppose the motion for
summary judgment because he ensured that I would have to move to get any of the
discovery I needed and I would not have the time to do that before I had to answer the
motion for summary judgment. I did ask this Court to extend my time to respond to it until
discovery was done but this Court said no.
53. Lapp always intended to make sure I didn’t have any discovery or any way of
proving improper motive to oppose the motion for summary judgment. Then the plan was
to use that decision to move for dismissal of this action on res judicata grounds. I know this
13
because he had already tried to get this case dismissed on grounds similar to res judicata.
Once that objection to the motion for summary judgment was filed with me not being able
to obtain any discovery or proof of improper motive Lapp was ensuring that I could not
prove improper motive and that the back door deal had happened.
54. I know it happened also because Lapp once outright asked me at Court in the
hallway whether I had any proof about any deal. I told him no. Obviously if there was no
deal I couldn’t have any proof of it. He seemed relieved at my response.
55. Lapp made sure I didn’t have the time to move for discovery before I had to
oppose his motion for summary judgment and then oppose his next motion for summary
judgment. I filed my opposition to the motion for summary judgment in this action on
October 15, 2019.
56. Lapp filed the RFA on 2/24/20 and then COVID hit and the case was not
actually argued until 2021.
57. But as the Court knows, the Court granted Colonial’s motion for summary
judgment in the Indemnity action. We appealed and lost.
58. But it wasn’t fair or fully litigated because we clearly did not have the
opportunity to do discovery to get evidence of improper motive because of Lapp. And how
unfair this was to the Barbaras is demonstrated by what has actually happened.
59, We were forced to oppose summary judgment without the benefit of
discovery because Lapp deliberately put us in that position. He asked to extend the time to
answer the discovery demands to a certain time and then scheduled the RFA after I agreed
to the extension, to a time that would ensure that I wouldn’t have enough time to get any
discovery because his answers would have required motion practice to get any actual
answers.
14
60. And as a result, the Court granted Colonial’s motion for summary judgment
in the Indemnity action because I couldn’t prove improper motive. And now because I was
unable to prove improper motive, the Appellate Court says Colonial should be able to
receive summary judgment in this action on res judicata grounds. Lapp prevented me from
being able to get any discovery to prove the improper motive in time. If Lapp had acted in
good faith, then I may have won on the motion for summary judgment in the Indemnity
action. But because he obstructed me, I lost that motion and now it will result in dismissal
of this action. How is this fair? How is this justice? How is this a full and fair opportunity
to litigate?
61. Even if I had made a motion to compel discovery after it was pointless, the
damage would already have been done because the motion for summary judgment was
based on the only information I had when I was being obstructed.
62. This obstruction continued. I clearly wasn’t going to get the documents I
wanted from Colonial so I served a third party subpoena on Beacon Consulting Company on
the case I filed in New York. Beacon has no liability or interest in blocking me but for
some reason, Lapp became Beacon’s attorney and blocked and opposed my subpoena. A
copy of his response objecting to the subpoena is attached as Exhibit “F”. I responded to
his objections but still received the same type of treatment from Michael Delaney of
McElroy when I had to reserve the subpoena. I never got any documents from Beacon and
Michael Delaney’s objections to my subpoena made sure it didn’t include any information
so that I could narrow my demands so that it would fall out of work product privilege. I
also subpoenaed Gotham, strangely enough they also hired an attorney to respond to me and
they gave me a few papers which did nothing. Three years of litigation at a construction
manager’s office and you can’t locate anything other than three documents.
15
63. Since this obstruction occurred concurrently with my preparing my objection
to the motion for summary judgment in the Indemnity case, it was never addressed to the
appellate court as a grounds for appeal. This is further proof that this case was never fully
litigated.
64. Also this motion for summary judgment is in violation of the Scheduling
Order because it wasn’t filed on time nor is such filing at least 8 months before trial.
65. If there was no back door deal and everything was legitimate, then there was
no reason to go to the extent Lapp did to prevent the Barbaras from getting any documents.
Lapp used my lack of knowledge of Connecticut law against the Barbaras and he kept on
making motions to try to get this action dismissed without us being able to get discovery.
This behavior which I have personal knowledge of demonstrates that Colonial did not act in
good faith and had an improper motive because Lapp’s behavior went above and beyond
any normal or zealous representation of his client.
66. Lapp was so desperate not to give the Barbaras any admissions or discovery
that he outright lied in his Answer and/or Objections to Lina T. Barbara’s Requests for
Admission. (see, Exhibit “G”) Two such examples are his denials to numbers 14 and 15
where one asks whether Colonial knew that Gotham had attempted to terminate the
Subcontract after substantial completion of the Subcontract and the other that Colonial knew
that Gotham attempted to terminate the subcontract after the work was completed. Lapp
filed and signed an answer in the Gotham action (see, Exhibit H”) which claimed in the
fifteenth affirmative defense that when Gotham terminated the subcontract that all work
within the scope of the work had already been completed. Substantially completed is
almost all work is done, except punch list. This is certainly less than the entire scope of
work being completed. And if the entire scope of work is done than all the work is
16
completed. So his denial in Exhibit “G” is in contradiction to Exhibit “H”. Exhibit “H” was
filed at the end of discovery of the Gotham action. Since I was representing Phoenix in the
Gotham action, I have personal knowledge of documents that were filed there and this copy
is accurate.
67. Colonial remained in the Gotham action out of choice because he could have
gotten out by moving for a pre answer motion to dismiss. Since he ended up making a back
door deal to settle the Gotham action it constitutes bad faith because it was done with
improper motive.
68. I wanted to disqualify Lapp so I could call him as a witness because he had
personal knowledge of what happened and some of it would not fall under privilege, but the
Court said no.
69. If we are allowed to go to trial I will want to call him at trial as he is no longer
affiliated with McElroy.
70. Is it not enough that after everything we did for Colonial to protect its bond at
their direction that Colonial walk away but Colonial won’t, We asked twice.
71. Colonial knows that by their actions they have effectively destroyed James
Barbara’s career and his ability to make money. He is over 60 years old and he has no
retirement. Our retirement went towards paying to protect Colonial’s bond. I can’t work
because of my daughter’s mental health condition and other diagnosis. I don’t want to
discuss it on these papers for privacy reasons.
72. Colonial by settling the Gotham case, by paying implies that Phoenix did
something wrong which is how it is viewed by anyone looking to hire an upper level
management employee. Phoenix didn’t do anything wrong, Gotham did. But by paying
Gotham, Colonial is making it appear that Phoenix was at fault. This impacts on James
17
Barbara’s ability to get a job in upper level management. Since Colonial settled the
Gotham action, James has been unable to get a job in upper level management. Because no
one is going to hire a person for an upper level management position that mismanaged his
own company. Because of Colonial’s actions, we have a personal judgment against us by
the bank we took a business line of credit out on. We had to expend that money because of
Colonial. With information so readily available on the internet this severely impacts on his
ability to get ajob. In fact, he was looking for a job for years and he was only able to get
one in middle level management. James has a great resume and he was constantly contacted
by recruiters to interview for upper level management jobs because he has a unique
background in both sales and operations. But every single time, he interviews, it goes well,
the recruiter calls back and he didn’t get the job. Recruiters keep your resume on file
because they only make money when they place someone and they always tell him they
are going to contact him for more jobs. But it never happens. The three million dollar
judgment probably didn’t help either and further confirms he is not a good candidate. Prior
to Phoenix, James had been getting jobs on the President level now he can’t even make a
lateral move to a job he is overqualified for.
7. Because of Colonial’s actions, the Barbaras will have no choice but to file for
bankruptcy. However, for us the situation is difficult because in James’ field filing a
bankruptcy could just be a tipping point to get him fired. He found out in the last year or so
that his company did not do background checks on their prospective hires which is why he
got this job which he is very overqualified for. But now everyone does background checks
and they will now see that James has a $3,000,000 judgment against him on top of
everything else. There is no company that would want to hire someone that makes bad
business decisions for upper level management positions and likely middle level
18
management. In fact James has applied for a large number of jobs on mid level
management which would be a lateral move and he hasn’t had any offers there either.
Moving for our daughter would also cause substantial problems because of her condition.
TA. We asked Colonial to walk away because it had been offered before but
apparently they would rather force us to file for bankruptcy so Jim can lose his job and we
can lose our house. Between the PJR predating Colonial’s and the two mortgages on it and
the homestead exemption, Colonial won’t get any money from the sale of our house.
Colonial would rather garnish Jim’s wages for the next twenty years when he doesn’t even
make enough to put into a 401K.
75. Based on McElroy’s actions, a back door deal clearly happened because the
lengths that the firm went to to prevent me getting any discovery is extreme. They
wouldn’t do that unless something actually happened.
76. This motion for summary judgment should be denied as the Barbaras did not
fully litigate our claims. How could we have when Colonial willfully refused to give us
anything to prove “improper motive”?
77. The motion for summary judgment that is the basis for the res judicata claim
was done without the benefit of the discovery. This happened through the intentional acts
of McElroy. Lapp’s extreme behavior should raise a triable issue of fact as to whether there
was improper motive. If nothing happened, there should have been no issue with responding
to the Request to Admit and Interrogatories. But Colonial answered nothing. Give me the
chance to ask Lapp at trial.
19
78 It is respectfully requested that the Court deny Colonial’s motion for
summary judgment in its entirety.
<2
a7,
Lina Barbara
t his4,
29!" day of February, 2024
SALVATORE A. CAVALLARO
Notary Public NOTARY PUBLIC
My Comm. Exp, Oct, 31, 2027
CERTIFICATION
Thereby certify that a copy ofthe foregoing has been mailed postage prepaid, this 29"
day of March, 2024 to the following:
Karen Dowd, Esq.
McElroy, Deutsch, Mulvaney & Carpenter, LLP
One State Street, 14" Floor
Hartford, CT 06103
2 A
Lina T. Barbara
20
Exhibit “A”
COLONIAL SURETY COMPaNY
Administrative
Office: 50 Chestnut Ridge Road, Montvale,
New Jersey 07645
- GENERAL INDEMNITY AGREEMENT
‘THES AGREEMENT of laderity, made and entered ina tin —_! day of 20.2, ecto’ by eo unertned (oy
‘5nd severally, including
including the Principal ss defined ccliecsively Buspose of Indemnitying COLONIAL COMPANY (the
“Sompeny) tnd ny er enya tay scar Surety ae heater deve crrocton wh any Bone won on etal
oe Greenwich, CT 06830
(hecsinatier signed to as he “Princiyal”) (actdresa)
NOW THEREFORE, in consideration of an in connecton wit the Company’s and afl is subsicievies or aifSiete comparies presently in existonce or herainater:
‘or procurement st the requast of Inclernnitcr of the susstysiip tor which application Is now pending, or which may be hereetter appilad fcr, ov other auretyatip, in finu tharect
or in iat!
of sueeyship now evtsandiing, or reited or in connedicn Tammalh, Indurriior and the Company hereby wader end eeroa:
‘1. DEFINITIONS. The folowing tenns, when capfslised in this Agreement have the et forth herein:
enh crmecteJ obigasion undertaken by Surety tor Princizal, beiore or efter the dase of this Agreement, snd any renewal, ailoration, mocdfficatlon or extencion
pi The person or enfiy set forth above or any one or combination thereot, or thelr successors in inderest, whether alone or in foind vernure with others nemed
ror Al pervons enoclng this Agreement wat ho Sut, Incucing tue Principal, The Principal ae! indernnior are sometimes refered to heveinafier ws the
and ary clher person or eniiy which the Company may procure to act as surety oF co-surely an any Bond or sny
ee enti cmh eoaneu
Contract - Any agreement
of or other ‘be paroroane of wich bonded by Surely and oll densons, rfcatone ard nwa
tnerect, oer rae eet at Gale PS reo ad agunnares etme
‘2 PREMIUM. indemnitor
wit pay, vreau teas te Corey aad srvexh ney tot eeaat ters er tke nh et ie
Jn scrondance wih the roguiar scheduled rates of the Company then in fron, and annusiy thereaiter shall pey or cause to be paid to the Company the anual premium theretoro:
{and for any er ob renewals, contract billing overruns or exteriors | ‘scccdENCe wih such mes unl Principal shall serve upOR the Company competeet, wien, legal
‘wacence satistactory fo fhe Company of is fined dlechange trom Ni pramiam shel be considered cared whan due. in the event of contract overaine, indanwitcr shall
pay to the Company, {rerum whic i doe 1 ta Company on rest fs contract ver. ie understood ‘agreed thet Bil premium fs
FULLY: UPON issuance of the Bond AND IS NOT | | ciiigetion by internfor coneabiee Gataut of Ne chagatons as cufined
{nis agreement. There gre no premium retums for condrard
and your successors ngres to pevtosm afi the cosdions of each Bond ari Contract ard to inieernity and seve harness Surety fron and.
and oi () demande, tanfifee, logsen, covte, darnages or expontos of trolscing of lose of attomeye and ell ofver eepereen, but rot imiod w cnet
‘end fees of krvesigation, achaggnnt of cir, OF wnt 1 he dachuage of Bods, enibrcement of any Contact wit inderwiicr, and in attempting 10 r900ver
toases or expanses irom jnderanitcr, or tind parties, whether or nat Surety shall have peld out any or af of such sure, (fj amourts to diachasgeory claire macie againet
Suet x ay Bon ich amour yb ued by Surety ny us cao | hated by Susy us exitatnen!jsecurty againal any lose on any Bond, ste (i) any premiums
‘dua on Bonds issued by the Sam enetatel Ps Poe
4. FIGHTS OF SURETY, in tutherance of te
A. Surely shail ave fe ft in a 6 Groton co determine whaher ay tetra shel he peld, compromieed, dalanded, or appt.
‘BL Surety shall nave the right to incu such esperiees in handing « cia as k devine necusenry or aditssble, Inksting but not inited to the expres far
engineeng and legal serdoes, and Susiy's good fash detmerninaton a 10 the neceoely Or agvisanay OF any such expense sfal be thes and ooncksive
7 Suey sh have te foroging ineapective ofthe tact thet Indemeter may herve assumed, or offered to assume, the defense of Surety upon sch cain.
Dh ory claim or aut bergunde, on Bond satrnent We amen ons and expenen, swore by an fer of Srey, oF tne vouchers cr oer even
‘by Serety, shell be crime facie evidence of the fact and extent ol fhe tatilly hereunder cf
‘Sr have tha rght to reiewroorent of Be sxpanees, promene and stereay fon Irreapective of wtether any Gond lees payment:
has been made by Surety. Surety may recover trem indernemior is fees incurred in prosecuting or detersiing any action arising out
Ger laio mis Nestor or Ober Goer ta ramet Fer? er aay mntsras re Conpary fr fos sre copes Pa ©
receipt ol ary claim by Octonial.
5 DEFWA, nti su bei Daw coment ¢ Content any of he bloat coor:
‘A. Principal or any Indernriios breaches,
Ary Boole o's Bord or abgns ta Cerin dct 10 be in daft.
C. Principal fats o pay for sny labor or metedets when such payment fe due.
D. Prindpal diverts any Contract funds trom ore Contact to enter, prior to the conptete Gactarye of Surety.
Prindpal or ary Wernrftor breaches any proven cf is, or
F, Prinepel tt to remit premiums when
a Pict roy rors i ae ay smn cer eect of pk on ty ona
errant tx com of chal become
i. Benepe Hn cen, ae, i -aduudged ‘neoenpetent, conmictad of a felony, becomes a fugtive from justice or disappears ar! cannot be loosed
without cass or
trom wer vcrcts ins ett ete tre os, Bey yo op ott et ny te ei
‘A. letue a stop payment directive to the chigess on the
1B assure tho edkniedeirafion of any Contract and errange for ts completion;
Seizrat, alerts and sso wn a fe ste of he werk oF steers, ez the srr fx
. take possession of and operais end eve the
‘completion of ry Conract witout Bai fr ony verted
, take powsessionof and operate and use often
water Tinta end renee ot Pcp a ee ntcoasry or
Oaks oor or gaara ean tr ech nas ot Srey sal cots Nocona sorpmon ot ay Canes te coche f Suey
‘connection with ary ‘such loan abut be covered by the ni
F. fle an irmediate sult to enforce any of all of the provisions of soon
t SROURITY. {1 acai io race sgunat Srey: ¥ Surety dowme to ostablith 0 reserve for potential
shall epoeR with Surety cash or other property. to protect ‘with respect la such claim or poteatiel ciaims and any
‘a stomoye fee. Such colar! secs shal ba such amex Surety hh 90 ‘Such coflaterat may be heid by
ndi tt hes recelved evidence oF Ie Gecherge fran auch claire, and endl R hes been fly relebureed for all looses, expenses,
‘fees, and paid Somme cin. Sor hone ipa b ner» pete Msn Oe rs
sacrament. 2s mci rte paoremnce of of ha ron of fie
sareters, ne bo ye nee aot ap eae i nyc yb
Si once enor cn Coch Bou afar seman wy Corben teat te
FORM S-100-124
1
1. a8 subcontracts
meade ico on with a Contract and euch syboontractors
2. al fights, fitle, and interest ct , .ancipal in and to afl machinery, or supplies which are used or required in connection with
‘other Dest Ye ats ote wart eo sich
2. al accounts: arly and all sues diva OF which may thereafter become 14 Contract and afl gums due or to became due on all other
Preview
DOCKET NO. UWY-X06-CVI7-5023922-S SUPERIOR COURT JAMES E. BARBARA and LINA T. BARBARA JUDICIAL DISTRICT OF WATERBURY COMPLEX Vv. LITIGATION DOCKET AT WATERBURY COLONIAL SURETY COMPANY February 29, 2024 PLAINTIFF LINA T. BARBARA’s OBJECTION TO COLONIAL SURETY COMPANY’s MOTION FOR SUMMARY JUDGEMENT STATE OF CONNECTICUT ) )ss: COUNTY OF NEW HAVEN ) Plaintiff, Lina T. Barbara, being duly sworn deposes and says: 1 I am one of the plaintiffs in this action, am familiar with the facts as herein alleged and make this affidavit in opposition to defendant’s motion for summary judgement. 2. The way the Courts have defined “bad faith” to need a showing of “improper motive” within the context of surety law effectively renders it almost impossible to prove and fails to make an actual carve out to protect indemnitors from bad faith behavior on the part of the sureties. 3 And how exactly do you prove improper motive? You need to base it on the behavior of the individual, their actions and the circumstances. Otherwise all a person with improper motive has to do is prevent the opposing party from getting anything in writing. After all if you are making a back door deal, I doubt you will put much in writing and you certainly don’t provide it in discovery. 4 In this case, bad faith behavior on the part of Colonial’s agents and attorneys have ensured that it will not have to suffer the consequences of its unethical and immoral actions. 5 The terms good faith and bad faith are phrases that have commonly understood meanings in the business world. Every business man assumes that the other is obligated by law to act in good faith otherwise no one could trust anyone that they didn’t already know. All contracts are supposed to be governed by good faith no matter the type. 6 To get a bond, sureties require that the contractor owners sign an indemnity agreement. The one the plaintiffs had to sign is annexed as Exhibit “A” (“IA”). As can be seen there is no definition for “good faith” so anyone signing this would understand it to be the standard generally accepted definition of “good faith” and bad faith which is not what the Courts have held is applicable in the State of Connecticut. No business person in their right mind would sign an indemnity agreement that defined “bad faith” as improper motive because that means they can incur expenses on your behalf and you can only dispute it if you can prove improper motive. 7 That means a surety can settle and pay someone 200X more than what a case was worth by any reasonable standard yet the indemnitor is still liable because you can not prove improper motive. This would be true even if the surety representative was friends with the person being paid. I don’t think this would happen often, but it can if a Court is not willing to look at the surrounding circumstances and behavior and will only accept proof that the individual admits that he paid the other person that sum because they were friends. 8 People who engage in back door deals don’t put things in writing that admit to their crimes. 9 I honestly don’t understand what proof the Court expected us to be able to obtain from defense counsel (“McElroy”) and Colonial to prove “improper motive”. Absent a signed note from the surety stating I am settling this case so I can get a certain amount of future business from Gotham, how can you prove actual motive? And if Colonial had such give me anote I am sure it would never give it to me. They have gone to great lengths to nothing. I would assume one must look to the circumstances and at McElroy’s and Colonial’s actions to determine if Colonial had “improper motive”. 10. I would argue that the plaintiffs (“Barbaras”) did not have an adequate opportunity to fully litigate their claims in the Colonial Surety v. Phoenix matter (consolidated case) and it is due to McElroy’s actions. 1. I would also proffer that McElroy’s actions through their assigned attorney Steven Lapp (“Lapp”) demonstrate that improper motive was present and a back door deal happened. 12. The Court must remember that Colonial and McElroy controlled the entire situation. Defendant (“Colonial”) sued Phoenix Contracting Group, Inc. and the Barbaras (“Indemnity action”) a few days before Gotham Greenwich Construction Co, LLC v. Phoenix Contracting Group, Inc., et al, (Sup. Ct, N.Y. Cnty, Index Number 651937/2010) [“Gotham action”] was filed. The Indemnity action was the case being relied upon by Colonial in this motion for summary judgment which had been consolidated with this instant action. 13. Colonial had McElroy handle the Indemnity action and the Gotham action out of their Hartford office. Colonial should have had another firm handle the Indemnity action instead of having McElroy handle it, especially because McElroy was handling the Gotham action and it needed plaintiffs’ cooperation in the Gotham action. 14. We (“plaintiffs”) were very angry that Colonial was suing us because we had destroyed ourselves financially because Colonial’s agents and attorneys kept on telling us that we needed to keep on paying for extra out of scope work and material in order for the bond to walk. Gotham was not paying us directly for monies it owed Phoenix for the work Phoenix had already done and Gotham had agreed to pay Phoenix directly. 15. Examples of some steps we took are I have an over $20,000 judgment against me for fertility treatment because | had to pay for extra material and labor instead of my health insurance. I needed to borrow money from my inlaws to reinstate the insurance because it was towards the end of my pregnancy and I needed tests. We have a judgement against my husband and myself from a business line of credit we used because we had to pay for Gotham’s extra out of scope material and labor. I think the judgment was obtained in 2012 and with pre judgment interest and costs was over $600,000. But I figure that with post judgment interest it’s probably around $1,000,000.00 owed to the Bank. The banks PJR on our house predates Colonial’s. The Barbaras cashed in their retirement to use for the business. Having us have to deal with the same firm and office for both cases was not good for the Barbaras but McElroy used it to it’s advantage. 16. Despite our being angry Colonial wanted our cooperation so they told us that it benefitted both of us if we had a joint defense agreement. I told them that by suing us in the Indemnity action at the same time as the Gotham action was going to interfere with my ability to fight Gotham. We agreed to the joint defense but since there was language we found objectionable in the actual written agreement it was agreed that we would mount a joint defense but to watch what we put in writing because it would be discoverable by Gotham. 17. I represented Phoenix in the Gotham action as counsel and accordingly I have personal knowledge of the happenings in that action and all documents I produced from that matter were pulled from either my files or the NYSCEF website which is the online filing system for certain New York State cases. 18. Colonial deliberately took advantage of the situation and would use this joint defense so we would not obtain any discovery from Colonial on the Indemnity action. Douglas Poulin, the partner from McElroy handling the Indemnity action, wanted to increase our PJR and asked for a in camera review of the documents. I agreed to allow him to increase our PJR amount but asked him for a copy of the bills. I also told him he could redact it if he wanted. He never gave them to me and I didn’t push it because it was my belief that anything that happened on the Indemnity action would just result in us having to pay more of the money we got from Gotham to Colonial but that we would still get money from Gotham. If we had been dealing with two different firms McElroy wouldn’t have been able to manipulate us like it did and we would likely have taken greater steps to protect ourselves. 19. I told Steven Lapp (“Lapp”) the associate handling the Gotham action for McElroy that I wanted Beacon’s reports and he told me that if he gave it to me that it would be discoverable because it wouldn’t be protected by privilege. and they didn’t want Gotham to have it. As a result, I never asked for it in discovery from Colonial because it was my belief that we were united in interest against Gotham. 20. The Indemnity action just kept on going forward with little being done because I was focused on trying to defend Phoenix and Colonial so I could pay Colonial. We would occasionally make a motion to amend our answer which Poulin opposed and it was denied because we were unable to get upstairs to the court room on time due to the long wait at security. 21. In the commercial construction business you have to finance the work from monies you got from previous jobs because you don’t get paid for the work you do for about 6 weeks. Being out $5 million dollars because of the amount of extra material and labor we had to pay for is a serious problem. If not for the bond and Colonial’s directions, we would have liened the job and walked off until they fixed all their jobsite conditions. But we didn’t because we were told that we were owed a lot of money and we would get it after Colonial got out of the case. Colonial just refused to get out of the case. 22. Because of the IA, you are essentially stuck doing whatever the bonding company wants until the bond is discharged at the end of the contract because you have signed the IA personally and they can rack up costs you are responsible for paying. 23. The Barbaras and Phoenix were in that position. Colonial was telling us the only way the bond would “walk” was if we kept on providing the extra out of scope material and extra labor until it was done. We had to do what they told us to do because they have the IA hanging over our heads. 24. Our only alternative choice would have been to file for bankruptcy, which in hindsight would have been better for us but we didn’t. Gotham owed us over $5 million in backcharges. Colonial and McElroy needed us to stay in action, so it kept on telling us that we went above and beyond the requirements of the Subcontract. They told us that it would be a change order negotiation and that the bond would run because there was so much Owner Default. We thought we would just get through it and then get our change orders after Colonial was removed from the case for lack of liability. 25. We needed to get Colonial out of the picture in order to get our backcharges. because Gotham didn’t need to deal with Phoenix it only needed to deal with Colonial. We were held hostage to Lapp making a motion for summary judgment which he assured us he would be making after discovery was over in the Gotham action. 26. One has to look at the totality of Colonial’s and McElroy’s actions to see Colonial’s improper motive. 27. Colonial stayed in the Gotham action despite being able to get out by a pre answer motion to dismiss because it had been aware of substantial owner default which meant Gotham could not meet a condition precedent of the bond. The fact that the Barbaras had no money and wasn’t reimbursing Colonial, Colonial should have gotten right out because it would just bleed money by staying in. By deciding not to move for a pre answer dismissal, Colonial was deciding to potentially pay an additional hundreds of thousands of dollars versus less than $100,000. I know this because when Colonial got the PRJ against us originally they had only billed a little over $90,000. Staying in was a bad business decision and wouldn’t have happened unless Colonial had some other motive for staying in the Gotham action. Gotham is a large construction manager that requires hundreds of millions dollars of bonds a year and Colonial wanted some of that business. 28. Colonial as an experienced surety knew that it didn’t have any liability under the bond because a condition precedent of the bond was that there be no owner default and there was plenty of owner default. Wayne Nunziata the president of Colonial knew this because we had told him and Jim McInerney of Beacon Consulting Company (the company Colonial hired to investigate the potential bond claim) investigated the situation and reported back to him prior to a meeting held between Gotham, Phoenix and Colonial. Based upon Beacon’s investigation, Colonial declined to sign a consent of surety to put some additional labor on the project. If Phoenix had been in default and at fault, Colonial would have had to sign the consent of surety but it didn’t. This letter has been provided to the Court numerous times in the past (a copy is attached as Exhibit “B”) and it is a true and accurate copy of the document I had received through discovery or was in my Phoenix files. Colonial indicated in the letter that extensions of time would be needed and extra work was done means out of scope work and material which means failure to comply with the jobsite conditions which means Owner default. 29. Colonial knew that if it moved for a pre answer dismissal that Gotham would never give them any business because Gotham would only want to work with companies that would work with them. So Colonial remained in the litigation which would cause the plaintiffs to bear substantial litigation costs. It didn’t concern Colonial because it knew that it had no liability under the bond and the cost of paying for the litigation costs were likely worth it for this new business relationship. 30. Colonial didn’t have any liability under the bonds and Lapp knew that when he settled the Gotham action. Lapp moved by Order to Show Cause instead of by notice to enforce the settlement agreement because he needed to have an order that extended the time to file a motion for summary judgment in case the motion was denied. Lapp knew that Colonial had no liability under the bond and he needed to get out if he couldn’t enforce his agreement with Gotham. A copy of the Order to show cause is annexed as Exhibit “C”. 31. What proves that the settlement agreement made was due to an improper motive is Lapp’s actions post settlement of the Gotham action. During the Gotham action, Lapp made only one motion. It was to enforce the settlement agreement. He requested and provided plenty of discovery without any resistance. In fact he probably requested most of the discovery and the depositions. I have personally witnessed how Lapp handles litigation. It all changed once I commenced this action because Colonial had already ensured that I didn’t get any discovery in the Indemnity action and they wanted to have summary judgment granted on the Indemnity action without my having the benefit of any discovery. 32. Lapp engaged in atypical behavior. I have known Lapp since 2012 and we worked together for a few years on the Gotham action under a joint defense. I know how he defends a case. Lapp is a good lawyer. 33. Once I started this case, Lapp started doing everything in his power to ensure that I could not get any discovery. Remember Lapp was the main associate handling the Gotham action and if there had been a back door deal Lapp would have known about it. 34. There is zealous representation and then there is Lapp’s behavior which far surpasses zealous representation. 35. As per the necessity of demonstrating an “improper motive” for bad faith to apply, Colonial was allowed to take self serving actions. Colonial was allowed to be incompetent. The only thing it wasn’t allowed to do was act upon an improper motive. If there was no back door deal and no improper motive, Lapp shouldn’t have had any problem with answering interrogatories, admissions and discovery in this action. He is obligated as an officer of the Court to follow the law and respond to discovery in good faith but he didn’t. 36. Lapp went to great lengths to avoid admitting or denying anything personally until Colonial’s Response to Request for Admissions. He never even filed an answer. He planned things in a manner to ensure I didn’t get any discovery to oppose his motion for summary judgment in the Indemnity action. This can be seen in the Court’s docket for both this case and the Indemnity action. 37. As indicated above, no discovery was done in the Indemnity action. In fact my defense of bad faith didn’t even arise in full until after Colonial settled the Gotham action. 38. On 4/2/14, Colonial filed the certificate of closed pleadings in the Indemnity action which was more than a year before Colonial settled the Gotham action. I didn’t do anything about this because honestly I had no idea what a certificate of closed pleadings was and I just thought worst case scenario we would have to pay more of our settlement with Gotham towards Colonial. Colonial should have made a motion for a stay until the Gotham action was completed because the damages were still ongoing but this worked better for Colonial because it would forestall my ability to be able to request discovery. And at that point, I was under the illusion that Colonial and Phoenix’s interests were aligned. And they should have been if Colonial hadn’t had an improper motive. 39, On the day that summary judgment motions were due in the Gotham action, Colonial settled the Gotham action dismissing all of our affirmative claims and paying Gotham $100,000. Lapp had told us that he was waiting to do his motion for summary judgment after discovery was done. He filed an Order to Show Cause on 4/20/15 to enforce the judgment. We opposed it and Justice Bransten basically ruled that since Phoenix did not pay money to Colonial to continue with the litigation they had the right to settle it. Judgment with notice of entry was filed on 12/3/15. We didn’t appeal it because there didn’t seem to be any point as there was no way that I knew of that we could have found proof that Colonial and Gotham made a back door deal. 40. After this we spent quite a few months trying to process the fact that our bonding company, that we had destroyed ourselves financially to protect had just given away our ability to pay them. I don’t remember what caused me to think about it but I realized that Colonial still had the Indemnity action against us. They didn’t discontinue it so they were still coming after us after they took away the only way we had of paying them. We tried to move to reopen the case so we could do discovery and get some money back. The motion was made on 6/21/16 and denied on 12/19/16. Colonial should have told us after they gave away our affirmative claims, that it was willing to discontinue its indemnity action but it didn’t, instead they continued on coming after us for the monies that we didn’t 10 want them to spend on work they didn’t need to do. Colonial did not spend one cent on the job, only investigation, legal and settlement amount. 41. After my motion was denied I went to ask for help at the Courthouse and it was suggested to me that nothing was stopping me from filing my own action so I did. I filed this one on 4/4/17 and one on behalf of Phoenix in New York in March 2017, 42. Lapp was desperately trying to avoid giving me anything for discovery or to admit anything because he must have known that a back door deal was made. He kept on trying to get this case dismissed or stayed so I couldn’t get any discovery. Lapp made a motion to dismiss on 7/26/17 which was denied on 2/9/18, see 103 in Court Docket. Lapp didn’t want to do discovery. He asked to continue the status conference of 3/9/18 which the Court granted and then on 3/20/18 he did a Request to Revise the Complaint on things that were really more about form. On 11/8/18 Judge Stevens issued an Order indicating what we needed to do to revise our complaint. On 4/26/18 the Barbaras submitted a scheduling order at the direction of Judge Stevens and on 4/27/18 Lapp made a motion to dismiss or stay this action. This motion to dismiss was denied on 10/30/18 (see, 126 of the Court docket). On 11/19/18 Lapp made an application to transfer this case to the complex litigation docket. 43. On 12/22/17, Lapp filed a motion for summary judgment in the Indemnity action. He wanted to make sure I had to oppose his motion before I had an opportunity to get discovery from him on this action. 44. The cases were joined and sent to this Complex Litigation Docket. A scheduling order was issued by this Court on 2/1/19 which is attached as Exhibit “D*. 45. As per the Scheduling Order, the parties were supposed to exchange discovery responses by 5/31/19. Lapp requested that we extend the responses due date to 6/30/19 and we stipulated to it. On 6/14/19, two weeks before our responses for discovery ll were due, Lapp filed a RFA for the motion for summary judgment. . 46. So Lapp deliberately made sure that we would have limited time with his discovery responses before we could oppose his motion for summary judgment. If that is all he did that would have been bad but not completely over the top. But Lapp’s discovery responses were basically all objections which would require me to make a motion to compel any kind of response. (see, Exhibit “E”) 47. The Barbaras moved the Court on 6/27/19 to amend the scheduling order to continue the motion for summary judgment until after the discovery was done in this matter and this Court denied it on 7/9/19. So I had to oppose the motion for summary judgment without the benefit of any discovery while I was responding to discovery that was due. 48. This was all clearly planned by Lapp to ensure that I couldn’t have the benefit of any discovery to respond to the motion for summary judgment to prove improper motive. 49. I would argue that the Indemnity action was not fully litigated because I never had an opportunity to get discovery on it before I had to respond to it and this was engineered by Lapp. This was unethical. 50. Barbaras filed our objection to the motion for summary judgment on the Indemnity action on 8/12/19 without receiving any discovery. On 8/22/19 Colonial filed a motion for summary judgment in this action on res judicata grounds, again so I wouldn’t have the time to move to compel discovery. 51. On 7/1/19, Lapp filed his Objections and Responses to our Interrogatories. Entry numbers 149 and 150. It is 65 pages of objections. Lapp did not provide me with a single document despite a request to provide me with certain documents. Most of the responses were being withheld because of an objection. You just need to read the document to see how dishonest Lapp is being. (see, Exhibit “#' “). He objected to almost all of my 12 directions, even definitions. He would object to most of our interrogatories seeking information on whether Colonial started receiving surety business from Gotham saying it was irrelevant . I flat out asked whether or not Colonial or Partners Re received any new surety business as a result of referrals from Gotham. Lapp objected, apparently the term “new surety business” is vague and ambiguous. And a response to the question would somehow give me information that would threaten Colonial’s competitive business advantage. Also supposedly it wasn’t relevant if Colonial got business referred by Gotham when I am claiming they made a back door deal for new surety business. The entire document is like that. Attorneys are supposed to make a good faith attempt to answer the questions, not do what he did. If Colonial got referrals because of Gotham, Lapp is supposed to tell me. If there were no referrals then just say that. Lapp just wanted to put up a blockade and give me no information because he was hiding a back door deal. This kind of behavior shows that there is discovery in Colonial’s possession that there was a back door deal but Lapp just wouldn’t give it to me. 52. Lapp controlled when he put the RFA for the motion for summary judgment in the Indemnity action and he had no limitations on when it had to be done. He deliberately timed it so I wouldn’t be able to get discovery in time to oppose the motion for summary judgment because he ensured that I would have to move to get any of the discovery I needed and I would not have the time to do that before I had to answer the motion for summary judgment. I did ask this Court to extend my time to respond to it until discovery was done but this Court said no. 53. Lapp always intended to make sure I didn’t have any discovery or any way of proving improper motive to oppose the motion for summary judgment. Then the plan was to use that decision to move for dismissal of this action on res judicata grounds. I know this 13 because he had already tried to get this case dismissed on grounds similar to res judicata. Once that objection to the motion for summary judgment was filed with me not being able to obtain any discovery or proof of improper motive Lapp was ensuring that I could not prove improper motive and that the back door deal had happened. 54. I know it happened also because Lapp once outright asked me at Court in the hallway whether I had any proof about any deal. I told him no. Obviously if there was no deal I couldn’t have any proof of it. He seemed relieved at my response. 55. Lapp made sure I didn’t have the time to move for discovery before I had to oppose his motion for summary judgment and then oppose his next motion for summary judgment. I filed my opposition to the motion for summary judgment in this action on October 15, 2019. 56. Lapp filed the RFA on 2/24/20 and then COVID hit and the case was not actually argued until 2021. 57. But as the Court knows, the Court granted Colonial’s motion for summary judgment in the Indemnity action. We appealed and lost. 58. But it wasn’t fair or fully litigated because we clearly did not have the opportunity to do discovery to get evidence of improper motive because of Lapp. And how unfair this was to the Barbaras is demonstrated by what has actually happened. 59, We were forced to oppose summary judgment without the benefit of discovery because Lapp deliberately put us in that position. He asked to extend the time to answer the discovery demands to a certain time and then scheduled the RFA after I agreed to the extension, to a time that would ensure that I wouldn’t have enough time to get any discovery because his answers would have required motion practice to get any actual answers. 14 60. And as a result, the Court granted Colonial’s motion for summary judgment in the Indemnity action because I couldn’t prove improper motive. And now because I was unable to prove improper motive, the Appellate Court says Colonial should be able to receive summary judgment in this action on res judicata grounds. Lapp prevented me from being able to get any discovery to prove the improper motive in time. If Lapp had acted in good faith, then I may have won on the motion for summary judgment in the Indemnity action. But because he obstructed me, I lost that motion and now it will result in dismissal of this action. How is this fair? How is this justice? How is this a full and fair opportunity to litigate? 61. Even if I had made a motion to compel discovery after it was pointless, the damage would already have been done because the motion for summary judgment was based on the only information I had when I was being obstructed. 62. This obstruction continued. I clearly wasn’t going to get the documents I wanted from Colonial so I served a third party subpoena on Beacon Consulting Company on the case I filed in New York. Beacon has no liability or interest in blocking me but for some reason, Lapp became Beacon’s attorney and blocked and opposed my subpoena. A copy of his response objecting to the subpoena is attached as Exhibit “F”. I responded to his objections but still received the same type of treatment from Michael Delaney of McElroy when I had to reserve the subpoena. I never got any documents from Beacon and Michael Delaney’s objections to my subpoena made sure it didn’t include any information so that I could narrow my demands so that it would fall out of work product privilege. I also subpoenaed Gotham, strangely enough they also hired an attorney to respond to me and they gave me a few papers which did nothing. Three years of litigation at a construction manager’s office and you can’t locate anything other than three documents. 15 63. Since this obstruction occurred concurrently with my preparing my objection to the motion for summary judgment in the Indemnity case, it was never addressed to the appellate court as a grounds for appeal. This is further proof that this case was never fully litigated. 64. Also this motion for summary judgment is in violation of the Scheduling Order because it wasn’t filed on time nor is such filing at least 8 months before trial. 65. If there was no back door deal and everything was legitimate, then there was no reason to go to the extent Lapp did to prevent the Barbaras from getting any documents. Lapp used my lack of knowledge of Connecticut law against the Barbaras and he kept on making motions to try to get this action dismissed without us being able to get discovery. This behavior which I have personal knowledge of demonstrates that Colonial did not act in good faith and had an improper motive because Lapp’s behavior went above and beyond any normal or zealous representation of his client. 66. Lapp was so desperate not to give the Barbaras any admissions or discovery that he outright lied in his Answer and/or Objections to Lina T. Barbara’s Requests for Admission. (see, Exhibit “G”) Two such examples are his denials to numbers 14 and 15 where one asks whether Colonial knew that Gotham had attempted to terminate the Subcontract after substantial completion of the Subcontract and the other that Colonial knew that Gotham attempted to terminate the subcontract after the work was completed. Lapp filed and signed an answer in the Gotham action (see, Exhibit H”) which claimed in the fifteenth affirmative defense that when Gotham terminated the subcontract that all work within the scope of the work had already been completed. Substantially completed is almost all work is done, except punch list. This is certainly less than the entire scope of work being completed. And if the entire scope of work is done than all the work is 16 completed. So his denial in Exhibit “G” is in contradiction to Exhibit “H”. Exhibit “H” was filed at the end of discovery of the Gotham action. Since I was representing Phoenix in the Gotham action, I have personal knowledge of documents that were filed there and this copy is accurate. 67. Colonial remained in the Gotham action out of choice because he could have gotten out by moving for a pre answer motion to dismiss. Since he ended up making a back door deal to settle the Gotham action it constitutes bad faith because it was done with improper motive. 68. I wanted to disqualify Lapp so I could call him as a witness because he had personal knowledge of what happened and some of it would not fall under privilege, but the Court said no. 69. If we are allowed to go to trial I will want to call him at trial as he is no longer affiliated with McElroy. 70. Is it not enough that after everything we did for Colonial to protect its bond at their direction that Colonial walk away but Colonial won’t, We asked twice. 71. Colonial knows that by their actions they have effectively destroyed James Barbara’s career and his ability to make money. He is over 60 years old and he has no retirement. Our retirement went towards paying to protect Colonial’s bond. I can’t work because of my daughter’s mental health condition and other diagnosis. I don’t want to discuss it on these papers for privacy reasons. 72. Colonial by settling the Gotham case, by paying implies that Phoenix did something wrong which is how it is viewed by anyone looking to hire an upper level management employee. Phoenix didn’t do anything wrong, Gotham did. But by paying Gotham, Colonial is making it appear that Phoenix was at fault. This impacts on James 17 Barbara’s ability to get a job in upper level management. Since Colonial settled the Gotham action, James has been unable to get a job in upper level management. Because no one is going to hire a person for an upper level management position that mismanaged his own company. Because of Colonial’s actions, we have a personal judgment against us by the bank we took a business line of credit out on. We had to expend that money because of Colonial. With information so readily available on the internet this severely impacts on his ability to get ajob. In fact, he was looking for a job for years and he was only able to get one in middle level management. James has a great resume and he was constantly contacted by recruiters to interview for upper level management jobs because he has a unique background in both sales and operations. But every single time, he interviews, it goes well, the recruiter calls back and he didn’t get the job. Recruiters keep your resume on file because they only make money when they place someone and they always tell him they are going to contact him for more jobs. But it never happens. The three million dollar judgment probably didn’t help either and further confirms he is not a good candidate. Prior to Phoenix, James had been getting jobs on the President level now he can’t even make a lateral move to a job he is overqualified for. 7. Because of Colonial’s actions, the Barbaras will have no choice but to file for bankruptcy. However, for us the situation is difficult because in James’ field filing a bankruptcy could just be a tipping point to get him fired. He found out in the last year or so that his company did not do background checks on their prospective hires which is why he got this job which he is very overqualified for. But now everyone does background checks and they will now see that James has a $3,000,000 judgment against him on top of everything else. There is no company that would want to hire someone that makes bad business decisions for upper level management positions and likely middle level 18 management. In fact James has applied for a large number of jobs on mid level management which would be a lateral move and he hasn’t had any offers there either. Moving for our daughter would also cause substantial problems because of her condition. TA. We asked Colonial to walk away because it had been offered before but apparently they would rather force us to file for bankruptcy so Jim can lose his job and we can lose our house. Between the PJR predating Colonial’s and the two mortgages on it and the homestead exemption, Colonial won’t get any money from the sale of our house. Colonial would rather garnish Jim’s wages for the next twenty years when he doesn’t even make enough to put into a 401K. 75. Based on McElroy’s actions, a back door deal clearly happened because the lengths that the firm went to to prevent me getting any discovery is extreme. They wouldn’t do that unless something actually happened. 76. This motion for summary judgment should be denied as the Barbaras did not fully litigate our claims. How could we have when Colonial willfully refused to give us anything to prove “improper motive”? 77. The motion for summary judgment that is the basis for the res judicata claim was done without the benefit of the discovery. This happened through the intentional acts of McElroy. Lapp’s extreme behavior should raise a triable issue of fact as to whether there was improper motive. If nothing happened, there should have been no issue with responding to the Request to Admit and Interrogatories. But Colonial answered nothing. Give me the chance to ask Lapp at trial. 19 78 It is respectfully requested that the Court deny Colonial’s motion for summary judgment in its entirety. <2 a7, Lina Barbara t his4, 29!" day of February, 2024 SALVATORE A. CAVALLARO Notary Public NOTARY PUBLIC My Comm. Exp, Oct, 31, 2027 CERTIFICATION Thereby certify that a copy ofthe foregoing has been mailed postage prepaid, this 29" day of March, 2024 to the following: Karen Dowd, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP One State Street, 14" Floor Hartford, CT 06103 2 A Lina T. Barbara 20 Exhibit “A” COLONIAL SURETY COMPaNY Administrative Office: 50 Chestnut Ridge Road, Montvale, New Jersey 07645 - GENERAL INDEMNITY AGREEMENT ‘THES AGREEMENT of laderity, made and entered ina tin —_! day of 20.2, ecto’ by eo unertned (oy ‘5nd severally, including including the Principal ss defined ccliecsively Buspose of Indemnitying COLONIAL COMPANY (the “Sompeny) tnd ny er enya tay scar Surety ae heater deve crrocton wh any Bone won on etal oe Greenwich, CT 06830 (hecsinatier signed to as he “Princiyal”) (actdresa) NOW THEREFORE, in consideration of an in connecton wit the Company’s and afl is subsicievies or aifSiete comparies presently in existonce or herainater: ‘or procurement st the requast of Inclernnitcr of the susstysiip tor which application Is now pending, or which may be hereetter appilad fcr, ov other auretyatip, in finu tharect or in iat! of sueeyship now evtsandiing, or reited or in connedicn Tammalh, Indurriior and the Company hereby wader end eeroa: ‘1. DEFINITIONS. The folowing tenns, when capfslised in this Agreement have the et forth herein: enh crmecteJ obigasion undertaken by Surety tor Princizal, beiore or efter the dase of this Agreement, snd any renewal, ailoration, mocdfficatlon or extencion pi The person or enfiy set forth above or any one or combination thereot, or thelr successors in inderest, whether alone or in foind vernure with others nemed ror Al pervons enoclng this Agreement wat ho Sut, Incucing tue Principal, The Principal ae! indernnior are sometimes refered to heveinafier ws the and ary clher person or eniiy which the Company may procure to act as surety oF co-surely an any Bond or sny ee enti cmh eoaneu Contract - Any agreement of or other ‘be paroroane of wich bonded by Surely and oll densons, rfcatone ard nwa tnerect, oer rae eet at Gale PS reo ad agunnares etme ‘2 PREMIUM. indemnitor wit pay, vreau teas te Corey aad srvexh ney tot eeaat ters er tke nh et ie Jn scrondance wih the roguiar scheduled rates of the Company then in fron, and annusiy thereaiter shall pey or cause to be paid to the Company the anual premium theretoro: {and for any er ob renewals, contract billing overruns or exteriors | ‘scccdENCe wih such mes unl Principal shall serve upOR the Company competeet, wien, legal ‘wacence satistactory fo fhe Company of is fined dlechange trom Ni pramiam shel be considered cared whan due. in the event of contract overaine, indanwitcr shall pay to the Company, {rerum whic i doe 1 ta Company on rest fs contract ver. ie understood ‘agreed thet Bil premium fs FULLY: UPON issuance of the Bond AND IS NOT | | ciiigetion by internfor coneabiee Gataut of Ne chagatons as cufined {nis agreement. There gre no premium retums for condrard and your successors ngres to pevtosm afi the cosdions of each Bond ari Contract ard to inieernity and seve harness Surety fron and. and oi () demande, tanfifee, logsen, covte, darnages or expontos of trolscing of lose of attomeye and ell ofver eepereen, but rot imiod w cnet ‘end fees of krvesigation, achaggnnt of cir, OF wnt 1 he dachuage of Bods, enibrcement of any Contact wit inderwiicr, and in attempting 10 r900ver toases or expanses irom jnderanitcr, or tind parties, whether or nat Surety shall have peld out any or af of such sure, (fj amourts to diachasgeory claire macie againet Suet x ay Bon ich amour yb ued by Surety ny us cao | hated by Susy us exitatnen!jsecurty againal any lose on any Bond, ste (i) any premiums ‘dua on Bonds issued by the Sam enetatel Ps Poe 4. FIGHTS OF SURETY, in tutherance of te A. Surely shail ave fe ft in a 6 Groton co determine whaher ay tetra shel he peld, compromieed, dalanded, or appt. ‘BL Surety shall nave the right to incu such esperiees in handing « cia as k devine necusenry or aditssble, Inksting but not inited to the expres far engineeng and legal serdoes, and Susiy's good fash detmerninaton a 10 the neceoely Or agvisanay OF any such expense sfal be thes and ooncksive 7 Suey sh have te foroging ineapective ofthe tact thet Indemeter may herve assumed, or offered to assume, the defense of Surety upon sch cain. Dh ory claim or aut bergunde, on Bond satrnent We amen ons and expenen, swore by an fer of Srey, oF tne vouchers cr oer even ‘by Serety, shell be crime facie evidence of the fact and extent ol fhe tatilly hereunder cf ‘Sr have tha rght to reiewroorent of Be sxpanees, promene and stereay fon Irreapective of wtether any Gond lees payment: has been made by Surety. Surety may recover trem indernemior is fees incurred in prosecuting or detersiing any action arising out Ger laio mis Nestor or Ober Goer ta ramet Fer? er aay mntsras re Conpary fr fos sre copes Pa © receipt ol ary claim by Octonial. 5 DEFWA, nti su bei Daw coment ¢ Content any of he bloat coor: ‘A. Principal or any Indernriios breaches, Ary Boole o's Bord or abgns ta Cerin dct 10 be in daft. C. Principal fats o pay for sny labor or metedets when such payment fe due. D. Prindpal diverts any Contract funds trom ore Contact to enter, prior to the conptete Gactarye of Surety. Prindpal or ary Wernrftor breaches any proven cf is, or F, Prinepel tt to remit premiums when a Pict roy rors i ae ay smn cer eect of pk on ty ona errant tx com of chal become i. Benepe Hn cen, ae, i -aduudged ‘neoenpetent, conmictad of a felony, becomes a fugtive from justice or disappears ar! cannot be loosed without cass or trom wer vcrcts ins ett ete tre os, Bey yo op ott et ny te ei ‘A. letue a stop payment directive to the chigess on the 1B assure tho edkniedeirafion of any Contract and errange for ts completion; Seizrat, alerts and sso wn a fe ste of he werk oF steers, ez the srr fx . take possession of and operais end eve the ‘completion of ry Conract witout Bai fr ony verted , take powsessionof and operate and use often water Tinta end renee ot Pcp a ee ntcoasry or Oaks oor or gaara ean tr ech nas ot Srey sal cots Nocona sorpmon ot ay Canes te coche f Suey ‘connection with ary ‘such loan abut be covered by the ni F. fle an irmediate sult to enforce any of all of the provisions of soon t SROURITY. {1 acai io race sgunat Srey: ¥ Surety dowme to ostablith 0 reserve for potential shall epoeR with Surety cash or other property. to protect ‘with respect la such claim or poteatiel ciaims and any ‘a stomoye fee. Such colar! secs shal ba such amex Surety hh 90 ‘Such coflaterat may be heid by ndi tt hes recelved evidence oF Ie Gecherge fran auch claire, and endl R hes been fly relebureed for all looses, expenses, ‘fees, and paid Somme cin. Sor hone ipa b ner» pete Msn Oe rs sacrament. 2s mci rte paoremnce of of ha ron of fie sareters, ne bo ye nee aot ap eae i nyc yb Si once enor cn Coch Bou afar seman wy Corben teat te FORM S-100-124 1 1. a8 subcontracts meade ico on with a Contract and euch syboontractors 2. al fights, fitle, and interest ct , .ancipal in and to afl machinery, or supplies which are used or required in connection with ‘other Dest Ye ats ote wart eo sich 2. al accounts: arly and all sues diva OF which may thereafter become 14 Contract and afl gums due or to became due on all other