Cadle Co. v. Errato, (AC 20268)

• Decision Date: 06 August 2002
• Docket Number: (AC 20268)
• Citation: 71 Conn. App. 447,802 A.2d 887
• Court: Connecticut Court of Appeals
• Parties: CADLE COMPANY v. ROBERT ERRATO ET AL.

71 Conn. App. 447

802 A.2d 887

CADLE COMPANY v. ROBERT ERRATO ET AL.

(AC 20268)

Appellate Court of Connecticut.

Argued November 30, 2001.

Officially released August 6, 2002.

Foti, Dranginis and Hennessy, Js. Thomas G. Benneche, for the appellant (named defendant).

Paul N. Gilmore, with whom, on the brief, were Bruce J. Gelston and Patrick M. Birney, for the appellee (plaintiff).

Opinion

DRANGINIS, J.

In this action involving a default on a promissory note, the defendant Robert Errato¹ appeals from the judgment of the trial court, following a trial to the court, in favor of the plaintiff, Cadle Company. On appeal, the defendant claims that the trial court improperly (1) concluded that the plaintiff was a holder in due course of the promissory note when (a) the copy of the promissory note presented at trial should have been excluded under the best evidence rule and as impermissible hearsay evidence and (b) the plaintiff failed to produce at trial the original promissory note, (2) concluded that the plaintiffs action was not time barred by the applicable statute of limitations and (3) admitted into evidence a document under the business record exception to the hearsay rule. We affirm the judgment of the trial court.

The trial court found the following facts. On May 17, 1991, the defendant and Paul Denz, his then business partner, executed a commercial promissory note in favor of the Bank of New Haven (bank) in the amount of $93,000 on demand, with monthly payments of principal and interest at a rate of 9.5 percent per annum. The defendant and Denz subsequently defaulted on their payments on the promissory note.

The bank demanded payment on the note, and on December 13, 1991, the defendant and Denz met with Joanne Miller, a loan officer at the bank.² At the meeting, in order to meet their financial obligation to the bank, the defendant and Denz proposed payments of $500 per month on the principal with no payments of interest. The bank accepted the proposal in a letter dated March 23, 1992, in which it stated that the monthly payments were to begin on April 10, 1992. Although there was no written modification of the original note, the parties intended for this agreement to provide temporary relief to the defendant and Denz until their financial condition improved.

The bank received a check for $500 from Denz on April 1, 1992. Denz attached a letter to the check stating his intent to send a check for that sum each month to reduce the principal of the $93,000 debt owed. A copy of that letter was sent to the defendant. Denz sent another check for $1000 to the bank in June, 1992, credited on July 30, 1992, which reduced the principal to $91,500. On September 15, 1994, the plaintiff entered into a loan and sale agreement with the bank for the purchase of its loans. The bank assigned its rights to the promissory note executed by the defendant and Denz to the plaintiff. On March 2, 1998, the plaintiff instituted this action as a holder in due course. Following a trial to the court, the court rendered judgment in favor of the plaintiff in the amount of $91,500 plus interest.³ This appeal followed. Additional facts will be set forth where pertinent to the issues raised.

I

The defendant first claims that the trial court improperly denied his motion for judgment of dismissal at the close of the plaintiffs case because the plaintiff failed to prove prima facie that it was a holder in due course of the promissory note at issue. Specifically, the defendant contends that because the plaintiff presented only a copy of the note at trial and failed to produce the original note, it could not demonstrate that it possessed, and thus was a holder of, the promissory note. We are not persuaded.

The following additional facts are pertinent to our resolution of this claim. During its direct examination of Miller, the plaintiff introduced into evidence a copy of the note. The defendant objected to its admission under the best evidence rule and claimed that to bring an action on the note, the plaintiff must produce the original note. The plaintiff informed the court that the original was attached to the complaint and was held at their main office in Ohio. In response, the court concluded that so long as the plaintiff could establish that the note "was made in the regular course of business and it was the practice [of the plaintiff] to make it at or about the time I think under the statute it would become admissible even though it's a copy."

The plaintiff then ascertained from Miller that the note was produced in the regular course of business and that it was the bank's practice to create such documents. The defendant then objected to the admission of the note on hearsay grounds. The trial court overruled the defendant's objections, stating that the objection "goes to the weight, not the admissibility," and permitted the copy of the note to be admitted into evidence.

Later in the trial, the plaintiff called Nicholas Valorie, an account manager for the plaintiff, to testify as to the plaintiffs ownership of the note. When the plaintiff introduced into evidence a copy of the purchase and sale agreement between itself and the bank during Valorie's testimony, the defendant objected to the admission of the copy on the grounds of the best evidence rule and because it failed to meet the business record exception to the hearsay rule. The trial court overruled the objections.

At the close of the plaintiffs case, the defendant moved for a judgment of dismissal based on the plaintiffs failure to establish a prima facie case. The defendant moved for a judgment of dismissal because "[t]he plaintiff has failed to introduce the original note being sued on, has failed to introduce competent evidence as to what is, but the principle basis of the motion, Your Honor, is they do not have the debt instrument actually referenced in the complaint and being sued on today.... [T]hey failed to carry their burden of proof as to their holder [in] due course status. They don't have the document. They are suing basically on a purchase and sale agreement. That's not a negotiable instrument. That's no proof of debt. That's proof that maybe [the plaintiff] purchased this loan, but it's not proof that they are a holder of this note."

The trial court denied the defendant's motion. In denying the motion, the court stated that for purposes of the motion it was required to view the evidence in the light most favorable to the plaintiff. The court concluded, on the basis of the reasonable inferences drawn from the evidence, that the plaintiff established that it was a holder in due course of the promissory note.

The defendant now contends that the court improperly denied his motion for judgment of dismissal because the plaintiff failed to present the original note at trial and thus could not establish a prima facie case that it was a holder of the note. In raising this issue, however, the defendant invokes an underlying evidentiary claim. Specifically, the defendant maintains that the trial court improperly admitted the copy of the note in the first place because the copy failed to satisfy the best evidence rule or to qualify under the business record exception to the hearsay rule pursuant to General Statutes § 52-180. We, therefore, will first address this evidentiary claim as it pertains to the admissibility of the note.

A

We review the trial court's evidentiary rulings under an abuse of discretion standard. State v. Pearl, 28 Conn. App. 521, 535, 613 A.2d 304 (1992). "As defined by our Supreme Court, the best evidence rule requires a party to produce an original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also B. Holden & J. Daly, Connecticut Evidence (1988) § 82 (a). The basic premise justifying the rule is the central position which the written word occupies in the law. Brookfield v. Candlewood Shores Estates, Inc., supra, quoting C. McCormick, Evidence (1984) § 230; see also Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573 (1990); Morales v. Saint Francis Hospital & Medical Center, 9 Conn. App. 379, 382, 519 A.2d 86 (1986), cert. dismissed, 202 Conn. 807, 520 A.2d 1287 (1987)." (Emphasis in original; internal quotation marks omitted.) O'Sullivan v. DelPonte, 27 Conn. App. 377, 384-85, 606 A.2d 43 (1992). The best evidence rule is a preferential, rather than an exclusionary rule. Brookfield v. Candlewood Shores Estates, Inc., supra, 12. Under the particular circumstances of this case, we, however, conclude that the copies were properly admitted into evidence regardless of the best evidence rule.

Despite the defendant's objection to the introduction of the copy, the defendant offered no evidence that the copy was not accurate, nor, in fact, did he dispute the contents of the copy. See O'Sullivan v. Delponte, supra, 27 Conn. App. 385; Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 381-82, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). In response to the plaintiffs complaint, the defendant admitted that he had executed a promissory note in favor of the bank and that the contents of the document spoke "for itself." More significantly, the defendant actually testified that he and Denz had signed a promissory note payable to the bank on May 17, 1991, in the amount of $93,000.⁴ This is the exact information contained in the copy of the note. "[W]here the terms of a document are not in actual dispute, it is inconvenient and pedantic to insist on the production of the instrument itself." (Internal quotation marks omitted.) Farr v. Zoning Board of Appeals, 139 Conn. 577, 582, 95 A.2d 792 (1953). The court, therefore, properly concluded that the copy of the promissory note was admissible.

We apply the same rationale with respect to the admission into evidence of the copy of the loan and...