199 Conn.App. 1
Conn. App. Ct.2020Background
- In 1993 Amity sold a shopping plaza to Madison and accepted three purchase-money notes, including an amended and restated third promissory note (the third note); those notes were later assigned to the plaintiff.
- A preexisting restriction agreement required Stop & Shop to pay a cash rental subsidy to Woodbridge in exchange for exclusivity; a later letter agreement redirected that subsidy to pay down Amity/Madison’s first and second notes.
- A 1999 modification prioritized application of the subsidy to the second note before the first; the first and second notes were paid in full by 2007 and no payments were applied to the third note.
- Plaintiff sued Woodbridge and Al‑Sawwaf for breach of contract, alleging an additional (alleged) letter of direction required Stop & Shop payments to go to the third note once the first and second were paid.
- Plaintiff opposed defendants’ summary-judgment motion by attaching Berger’s deposition (a signatory) in which he recalled a “letter of direction,” but plaintiff did not produce the document and could not locate it.
- The trial court excluded Berger’s testimony under the best evidence rule and granted summary judgment for defendants; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Berger’s deposition may be used to prove the contents of the alleged letter of direction in opposition to summary judgment (i.e., admissibility under the best evidence / secondary-evidence rules). | Berger’s testimony establishes the letter’s existence and terms; neither party had the original so secondary evidence is permissible. | The best evidence rule requires the original or sufficient secondary proof of former existence, present unavailability, and contents; plaintiff failed to meet that burden. | Testimony barred by best evidence rule; plaintiff failed to prove former existence, unavailability, and contents, so summary judgment affirmed. |
| Whether the court erred in denying plaintiff’s motion for reconsideration. | Plaintiff contended reconsideration was warranted. | Defendants opposed; court noted claim was inadequately briefed on appeal. | Appeal does not review reconsideration denial—plaintiff’s claim inadequately briefed and thus not reviewed. |
Key Cases Cited
- Ferrari v. Johnson & Johnson, Inc., 190 Conn. App. 152, 210 A.3d 115 (Conn. App. 2019) (standard of review for summary judgment).
- Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 518 A.2d 928 (Conn. 1986) (party claiming lost document must prove former existence, present unavailability, and contents).
- Coelm v. Imperato, 23 Conn. App. 146, 579 A.2d 573 (Conn. App. 1990) (explaining the best evidence rule and its application to written instruments).
- Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn. App. 68, 957 A.2d 541 (Conn. App. 2008) (only evidence admissible at trial may be used to support or oppose summary judgment).
- Central Natl. Bank of New York v. Bernstein, 15 Conn. App. 90, 544 A.2d 239 (Conn. App. 1988) (former existence and present unavailability is a factual issue).