Amity Partners v. Woodbridge Associates, L.P. ( 2020 )

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AMITY PARTNERS v. WOODBRIDGE
ASSOCIATES, L.P., ET AL.
(AC 42400)
Alvord, Elgo and Devlin, Js.
Syllabus
The plaintiff sought to recover damages from the defendants W Co. and A,
for, inter alia, breach of contract in connection with a dispute arising
from a transaction in which C Co. sold a shopping plaza to M Co., and,
in return, C Co. took back certain purchase money notes from M Co.,
including an amended and restated third promissory note, which con-
tained the terms of the sale of the plaza. The notes subsequently were
assigned to the plaintiff. Prior to the sale of the plaza, W Co., M Co.
and S Co., the sole tenant in the plaza, had entered into a restriction
agreement pursuant to which S Co. agreed to pay W Co. an annual cash
rental subsidy in exchange for its promise not to lease a nearby property
to S Co.’s competitor. Thereafter, M Co. and S Co. signed a letter agree-
ment pursuant to which the cash rental subsidy payments under the
restriction agreement were redirected and applied to pay down the
amounts owed on the first and second purchase money notes. Subse-
quently, B, individually and on behalf of H Co., the general partner of
M Co., and the plaintiff, as the successor in interest to C Co., entered
into a first modification agreement pursuant to which the cash rental
subsidy payments were directed to pay off the second note prior to
paying off the first note. Both the first and second notes thereafter were
paid in full; no payments were directed toward the third note. In its
breach of contract claim, the plaintiff alleged that the defendants failed
to direct the cash rental subsidy payments to pay off the third note
pursuant to an alleged letter of direction, which purportedly provided
for those payments to be applied toward paying off the third note once
the first and second notes were paid in full. The defendants filed a
motion for summary judgment, and the plaintiff filed a memorandum
of law in opposition thereto to which it attached the deposition testimony
of B, a signatory to all of the relevant agreements, to establish the
existence and terms of the alleged letter of direction. The plaintiff did
not submit a copy of the letter of direction. The trial court granted
the defendants’ motion for summary judgment and rendered judgment
thereon, determining, inter alia, that B’s testimony was barred by the
best evidence rule. Held that the plaintiff could not prevail on its claim
that the trial court improperly determined that the best evidence rule
barred the plaintiff’s reliance on B’s deposition testimony in support of
its opposition to the defendants’ motion for summary judgment; the
plaintiff failed to satisfy its burden, pursuant to the applicable rule (§ 10-
3) of the Connecticut Code of Evidence, to prove that B’s testimony
was sufficient to establish the former existence, present unavailability
and contents of the letter of direction, as his testimony lacked specific
details regarding the letter’s signatories and terms and neither B nor
the plaintiff could locate a copy of the letter, and, therefore, the produc-
tion of the letter at trial would not have been excused.
Argued February 18—officially released July 14, 2020
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where Remedios Rogel, executrix of the estate of Mon-
qidh M. Al-Sawwaf, was substituted as a defendant;
thereafter, the court, Lee, J., granted the motion for
summary judgment filed by the named defendant et al.
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Barbara M. Schellenberg, with whom were David
A. Ball and Philip C. Pires, for the appellees (named
defendant et al.).
Opinion
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 cer-
tain deposition testimony in support of its opposition
to the defendants’ motion for summary judgment. We
disagree with the plaintiff and, accordingly, affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant 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, Wood-
bridge 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 Wood-
bridge 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 con-
struction 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 Associ-
ates, 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 inter-
est to Amity, entered into a first modification agree-
ment, 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 pay-
ment 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 pay-
ing off the third note once the first and second notes
were paid in full. In the operative complaint,4 the plain-
tiff 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 sum-
mary judgment. On August 17, 2018, the plaintiff filed
a memorandum of law in opposition to the defendants’
motion for summary judgment. In support of its opposi-
tion, 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 defendants’ motion
for summary judgment on October 1, 2018. In its memo-
randum 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 con-
tent 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] defendants’
motion for summary judgment.’’ (Internal quotation
marks omitted.) The plaintiff filed a motion for recon-
sideration 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] pro-
vides 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 dis-
puted 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 testi-
mony 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 con-
taining the phrase including but not limited to, contem-
plates that supporting documents to a motion for sum-
mary judgment be made under oath or be otherwise
reliable. . . . [The] rules would be meaningless if they
could be circumvented by filing [unauthenticated docu-
ments] in support of or in opposition to summary judg-
ment.’’ (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 determi-
native in connection with the motion for summary judg-
ment . . . [and] . . . in and of itself, establishes a gen-
uine 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 defendants’ motion 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 docu-
ment,’’ 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 typi-
cally applies when attempting to prove the contents of
instruments such as deeds, wills or contracts, where a
slight variation of words may mean a great difference
in rights. . . . The basic premise justifying the rule is
the central position which the written word occupies
in the law.’’ (Citations omitted; internal quotation marks
omitted.) Coelm v. Imperato, 23 Conn. App. 146, 150,
579 A.2d 573, cert. denied, 216 Conn. 823, 581 A.2d
1054 (1990).
Section 10-3 of the Connecticut Code of Evidence
provides four situations in which secondary evidence
may be introduced to establish the contents of a docu-
ment. Those situations include (1) when the originals
are lost or destroyed, (2) when the originals are not
reasonably obtainable, (3) when the originals are in the
possession or control of the opponent, or (4) when the
contents relate to a collateral matter. Conn. Code Evid.
§ 10-3. ‘‘[Our] cases and the commentaries are . . . in
substantial agreement that a party must undertake a
twofold burden in order to recover on a document that
he cannot produce. Such a party must demonstrate both
(a) the former existence and the present unavailability
of the missing document, and (b) the contents of the
missing document.’’ Connecticut Bank & Trust Co. v.
Wilcox, 201 Conn. 570, 573, 518 A.2d 928 (1986); see
also Host America Corp. v. Ramsey, 107 Conn. App.
849, 855, 947 A.2d 957, cert. denied, 289 Conn. 904,
957 A.2d 870 (2008). Whether a party sufficiently has
demonstrated former existence and present unavail-
ability is a question of fact. See Central National Bank
of New York v. Bernstein, 15 Conn. App. 90, 92, 544 A.2d
239, cert. denied, 209 Conn. 806, 548 A.2d 436 (1988).
In the present case, the plaintiff claims that the defen-
dants failed to direct payment of the cash rental subsidy
to the third note in accordance with the terms of the
alleged letter of direction. The plaintiff, however, has
failed to provide that letter of direction to the court
as evidence of the terms requiring such direction of
payment. The plaintiff’s counsel explained at oral argu-
ment on summary judgment and before this court that
neither he nor the plaintiff had possession of the letter
of direction, nor could the plaintiff identify any person
who knew of its whereabouts. The plaintiff accordingly
seeks to introduce secondary evidence of the letter of
direction under an exception to the best evidence rule,
claiming that neither party had possession of the
document.
In support of the letter of direction’s former exis-
tence, present unavailability and contents; see Connect-
icut Bank & Trust Co. v. Wilcox, supra, 201 Conn. 573;
the plaintiff attached Berger’s deposition testimony as
an exhibit to its opposition to the defendants’ motion
for summary judgment. In his deposition, Berger testi-
fied that the 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.’’ When asked if he
had a copy of the letter of direction in his possession,
he testified that he did not. The plaintiff did not provide
any further evidence in this regard.
The plaintiff has not satisfied its burden to establish
the grounds for admission of secondary evidence, pur-
suant to § 10-3 of the Connecticut Code of Evidence.
Berger’s deposition testimony fails to establish that the
document once existed. He testified during his deposi-
tion that he ‘‘remember[s] an agreement called, I think
it was entitled ‘Letter of Direction’ . . . .’’ As the trial
court found, however, he failed to identify the date of
the letter, as well as the parties to the letter. Addition-
ally, in clarifying what he remembered about the letter
of direction, he said: ‘‘I may be remembering incor-
rectly, but I don’t think so,’’ and, as the trial court noted,
he admitted: ‘‘I could possibly be wrong.’’ In accordance
with Connecticut Bank & Trust Co. v. Wilcox, supra,
201 Conn. 573, it was the plaintiff’s burden to prove
that the secondary evidence presented to the court was
sufficient to establish the former existence, present
unavailability and contents of the letter of direction.
Because Berger’s testimony lacks specific details
regarding the document’s signatories and terms, and
because neither Berger nor the plaintiff could locate a
copy of the letter of direction, we conclude that the
plaintiff has not met this burden and that the production
of the letter of direction, at trial, would not be excused.
Accordingly, the court did not err when it declined to
consider Berger’s testimony in ruling on the defendants’
motion for summary judgment, as his testimony is
barred by the best evidence rule.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Al-Sawwaf was a general partner of Woodbridge Associates, L.P. He died
during the pendency of this action, and Remedios Rogel, the executrix of
his estate, was substituted as a defendant. Woodbridge Associates, Inc., was
also named as a defendant but is nonappearing. For simplicity, we refer
to those parties collectively as the defendants and individually by name
where appropriate.
2
Harry Franklin owned 100 percent of the issued stock in Amity. After
his death on March 10, 1993, his ownership interest, including the three
notes acquired from the sale of the plaza to Madison, became assets of his
estate. The plaintiff was formed to distribute assets of the Franklin estate
to family members of Harry Franklin. The plaintiff’s membership consists
of all the siblings who were to inherit shares of the notes held by Viliam
Frankel and Magdalena Franklin, as personal representatives of the estate
of Harry Franklin. Viliam Frankel was a partner of the plaintiff and was
involved in the sale of the plaza to Madison.
3
The record on appeal includes the deposition of Martin G. Berger, vice
president of McCann Real Equities Series 10, Inc. (McCann), a real estate
development firm which was the managing member and general partner of
Madison. McCann created Woodbridge Associates, L.P., to develop property
located near the plaza in Woodbridge. As testified to by Berger, Woodbridge
Associates, L.P., and Madison were ‘‘related entities’’ and, due to their owner-
ship congruence, Woodbridge Associates, L.P., would receive ‘‘the benefit
of having [Madison] benefit’’ when ‘‘Stop & Shop us[ed] the funds [of the
rental subsidy payments] to retire the [first and second] notes.’’
4
The operative complaint alleged fourteen counts against the various
defendants. Count one alleged breach of contract against Woodbridge Asso-
ciates, L.P., and Woodbridge Associates, Inc. Count two alleged liability of
Al-Sawwaf, the general partner of Woodbridge Associates, L.P. Count three
sought to impose liability on Al-Sawwaf by piercing the corporate veil of
Woodbridge Associates, L.P. Counts four through fourteen alleged misrepre-
sentation, conversion, unjust enrichment, statutory theft, violations of the
Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.,
and civil conspiracy. The plaintiff did not oppose the defendants’ motion
for summary judgment as to counts four through fourteen and, on appeal,
does not challenge the judgment rendered on those counts.
5
As the court noted during the hearing on the defendants’ motion for
summary judgment, and as is readily apparent after our review of the relevant
documents, nowhere in the three documents is there any reference to the
third note.
6
On behalf of Madison and Woodbridge Associates, L.P., Berger signed
the restriction agreement and the letter agreement. He signed the third note
and the agreement modifying the third note on behalf of Madison, and signed
the first modification agreement individually and on behalf of McCann Real
Equities Investment Holding Company, the general partner of Madison.
7
The plaintiff also claims that the court erred in denying its motion for
reconsideration. Because the plaintiff does not provide any legal analysis of
this claim to support its assertion, we consider this claim to be inadequately
briefed, and, therefore, we decline to review it. ‘‘Claims are inadequately
briefed when they are merely mentioned and not briefed beyond a bare
assertion. . . . Claims are also inadequately briefed when they . . . consist
of conclusory assertions . . . with no mention of relevant authority and
minimal or no citations from the record . . . .’’ (Internal quotation marks
omitted.) Estate of Rock v. University of Connecticut, 323 Conn. 26, 33, 144
A.3d 420 (2016).
8
The defendants argue in the alternative that the court’s judgment can
be affirmed on the ground that Berger’s deposition testimony would be
inadmissible under our hearsay rules. Because we agree with the defendants
that the testimony is inadmissible under the best evidence rule, we affirm
the court’s judgment on that ground and need not consider the defendants’
alternative argument.