Partners v. Woodbridge Assocs., L.P.

Decision Date14 July 2020
Docket NumberAC 42400
Citation234 A.3d 1109,199 Conn.App. 1
CourtConnecticut Court of Appeals
Parties Amity PARTNERS v. WOODBRIDGE ASSOCIATES, L.P., ET AL.

Kenneth A. Votre, New Haven, for the appellant (plaintiff).

Barbara M. Schellenberg, Orange, with whom were David A. Ball and Philip C. Pires, Bridgeport, for the appellees (named defendant et al.).

Alvord, Elgo and Devlin, Js.

ALVORD, J.

The plaintiff, Amity Partners, appeals from the summary judgment rendered by the trial court in favor of the defendants Woodbridge Associates, L.P.,

and Monqidh M. Al-Sawwaf.1 On appeal, the plaintiff claims that the court improperly determined that the best evidence rule barred the plaintiff's reliance on certain deposition testimony in support of its opposition to the defendantsmotion for summary judgment. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 1993, Madison Square Associates, L.P. (Madison), and Amity Road Shopping Center, Inc. (Amity), engaged in a transaction in which Amity sold to Madison the Amity Plaza Shopping Center in New Haven (plaza) and, in return, Amity took back certain purchase money notes from Madison. Included in these purchase money notes was the "Amended and Restated Third Promissory Note" (third note), which contained the terms of the sale of the plaza. In 1998, Amity assigned the notes to Viliam Frankel and Magdalena Franklin, as personal representatives of the estate of Harry Franklin, who then assigned the notes to the plaintiff.2

Prior to the sale of the plaza, on May 13, 1992, Woodbridge Associates, L.P., Madison, and The Stop & Shop Supermarket Company (Stop & Shop)—the sole tenant in the plaza—had entered into a restriction agreement,

under which Stop & Shop had agreed to pay to Woodbridge Associates, L.P., a cash rental subsidy of no more than $134,000 per annum in exchange for its promise not to lease a nearby property it owned to a competitor of Stop & Shop. On December 21, 1993, Stop & Shop and Madison signed a letter agreement regarding a construction loan Stop & Shop earlier had given to Madison to renovate the plaza. The letter agreement provided for the cash rental subsidy payments under the restriction agreement, originally payable to Woodbridge Associates, L.P., to be redirected and applied to pay down the amounts owed on the first purchase money note (first note) and the second purchase money note (second note) held by Amity and, later, held by the plaintiff as the successor in interest to Amity.3

On May 7, 1999, Martin G. Berger, individually and on behalf of McCann Real Equities Investment Holding Company, along with the plaintiff, as successor in interest to Amity, entered into a first modification agreement, under which the parties agreed that the cash rental subsidy paid by Stop & Shop would be directed to pay down the second note prior to paying down the first note. Both the first and second notes were paid in full as of 2007. No payments were directed toward the third note.

The plaintiff brought this action for, inter alia, breach of contract against the defendants, alleging, among other things, that the defendants failed to direct payment to pay off the third note, pursuant to an alleged letter of direction, which purportedly provided for the

cash rental subsidy payments to be applied toward paying off the third note once the first and second notes were paid in full. In the operative complaint,4 the plaintiff alleges that its breach of contract claim is supported by the contents of the restriction agreement, the letter agreement, and the first modification agreement.5 On June 22, 2018, the defendants filed a motion for summary judgment. On August 17, 2018, the plaintiff filed a memorandum of law in opposition to the defendantsmotion for summary judgment. In support of its opposition, the plaintiff attached the deposition transcript of Berger, a former partner of Woodbridge Associates, L.P., and signatory to the relevant documents,6 in order to establish the existence and terms of the alleged letter of direction. Berger testified that a letter of direction "directed Stop & Shop to apply the restriction payment to the third note, and it was required [to do so] to [his] recollection, by Amity ... as a condition of accepting the third note or the amended and restated third note." The plaintiff did not submit a copy of the letter of direction.

The court, Lee, J. , granted the defendantsmotion for summary judgment on October 1, 2018. In its memorandum of decision, the court stated that the "[p]laintiff cites to no authority under which [Berger's] testimony would be admissible. Indeed, it is barred by the best evidence rule as set forth in [ § 10-1 of the Connecticut Code of Evidence ], which provides, [t]o prove the content of a writing ... the original writing ... must be admitted in evidence, except as otherwise provided .... As the [c]ommentary to the [r]ule provides, [t]he proponent must produce the original of a writing ... when attempting to prove the contents thereof, unless production is excused. See also [C. Tait & E. Prescott] Tait's Handbook of Connecticut Evidence (5th Ed. [2014] ) § 10.1.2. If a document is not yet in evidence, a witness cannot testify concerning the contents of a document not yet in evidence. Id., § 10.1.3. Here, [the] plaintiff is trying to prove the content of this letter of direction. But, by failing to attach this document to its opposition papers (or elsewhere), it has not adduced admissible evidence in opposition to [the] defendantsmotion for summary judgment." (Internal quotation marks omitted.) The plaintiff filed a motion for reconsideration on October 22, 2018, which was denied by the court on December 5, 2018. This appeal followed.

Before we address the plaintiff's claim, we first set forth the applicable standard of review of a trial court's ruling on a motion for summary judgment, along with relevant legal principles. "Practice Book § [17-49] provides that summary judgment shall be rendered forth-with if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ... The party seeking summary judgment has the burden of showing the absence of any genuine issue

[of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ... Once the moving party has met its burden [of production] ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. ... The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. ... Our review of the decision to grant a motion for summary judgment is plenary. ... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Citations omitted; internal quotation marks omitted.)

Ferrari v. Johnson & Johnson, Inc. , 190 Conn. App. 152, 156–57, 210 A.3d 115 (2019).

" Practice Book § 17-45 provides in relevant part that [a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. ... That section does not mandate that those documents be attached in all cases, but we note that [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. ... Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable. ... [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Emphasis in original; internal quotation marks omitted.) Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut , 111 Conn. App. 68, 72–73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).

On appeal, the plaintiff claims that "[t]he testimony of [Berger] established the existence of a document directing the payments of the [third note] from the Stop & Shop payment stream." The plaintiff further claims that "[t]he testimony of [Berger] is case determinative in connection with the motion for summary judgment ... [and] ... in and of itself, establishes a genuine issue of material fact as to whether there was a written agreement obligating the payment of the [third note] from the Stop & Shop payments."7 Accordingly, the plaintiff argues that the court erred in determining that Berger's testimony would be inadmissible at trial and that it, therefore, could not support its opposition to the defendantsmotion for summary judgment. The plaintiff argues that the testimony would not be barred by the best evidence rule because "[t]he parties [agree that] neither one had possession of the alleged document," and, therefore, Berger's testimony is admissible under an exception to the best evidence rule. In response, the defendants argue that the testimony would be inadmissible at trial because it would be barred by the best evidence rule.8 We agree with the defendants.

"As defined by our Supreme Court, the best evidence rule forces a party to produce the original writing, if it

is available, when the terms of that writing are material and must be proved. ... The best evidence rule...

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2 cases
  • Rousseau v. Weinstein
    • United States
    • Connecticut Court of Appeals
    • May 25, 2021
    ...legally and logically correct and find support in the record." (Internal quotation marks omitted.) Amity Partners v. Woodbridge Associates, L.P. , 199 Conn. App. 1, 6–7, 234 A.3d 1109 (2020).I The plaintiffs first claim that "the trial court improperly held that the [dissolution action] was......
  • Weaver v. Sena
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    • Connecticut Court of Appeals
    • September 8, 2020
    ...we consider this claim inadequately briefed and, thus, decline to address it. See, e.g., Amity Partners v. Woodbridge Associates, L.P. , 199 Conn. App. 1, 8 n.7, 234 A.3d 1109 (2020).10 To the extent that the plaintiff claims generally that the trial court improperly excluded exhibits that ......
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    • James Publishing Practical Law Books Is It Admissible? Part I. Testimonial Evidence
    • May 1, 2022
    ...of the original before ruling on its admissibility as an exception to the best evidence rule. Amity Partners v. Woodbridge Associates , 234 A.3d 1109, 199 Conn.App. 1 (Appellate Court of Conn., 2020). The “Best Evidence Rule” forces a party to produce the original writing, if it is availabl......
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    • James Publishing Practical Law Books Is It Admissible? Part II. Documentary evidence
    • May 1, 2022
    ...F.Supp. 1520 (Tex. 1989). 29 Robertson v. U.S. Bank, N.A. , 831 F.3d 757 (6th Cir., 2016). 30 Amity Partners v. Woodbridge Associates , 234 A.3d 1109, 199 Conn.App. 1 (Appellate Court of Conn., 2020). In a breach of contract action based upon a document that cannot be produced, the proponen......
  • Best Evidence Rule
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2021 Testimonial evidence
    • August 2, 2021
    ...other than where the Federal Rules of Evidence or a federal statute provides otherwise. 2 Amity Partners v. Woodbridge Associates , 234 A.3d 1109, 199 Conn.App. 1 (Appellate Court of Conn., 2020). The “Best Evidence Rule” forces a party to produce the original writing, if it is available, w......
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2021 Documentary evidence
    • August 2, 2021
    ...F.Supp. 1520 (Tex. 1989). 26 Robertson v. U.S. Bank, N.A. , 831 F.3d 757 (6th Cir., 2016). 27 Amity Partners v. Woodbridge Associates , 234 A.3d 1109, 199 Conn.App. 1 (Appellate Court of Conn., 2020). In a breach of contract action based upon a document that cannot be produced, the proponen......
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