Martin Franchises, Inc. v. Cooper U.S., Inc.

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MARTIN FRANCHISES, INC.
v. COOPER U.S., INC.
(AC 37770)
Beach, Keller and Lavery, Js.
Argued January 6—officially released April 12, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Richard P. Gilardi, judge trial referee
[summary judgment as to liability; articulation]; Hon.
Edward F. Stodolink, judge trial referee [judgment].)
Richard F. Connors, for the appellant (defendant).
Timothy D. Miltenberger, for the appellee (plaintiff).
Opinion
KELLER, J. The defendant, Cooper U.S., Inc., appeals
following the trial court’s rendering of summary judg-
ment in favor of the plaintiff, Martin Franchises, Inc.
On appeal, the defendant claims that the court erred
in rendering summary judgment in favor of the plaintiff
on the following two grounds: (1) the court improperly
concluded that there was no genuine issue of material
fact; and (2) the court held the defendant to an incorrect
burden of proof in its opposition to the plaintiff’s motion
for summary judgment. We reverse the trial court’s judg-
ment and remand the case to that court with direction
to deny the plaintiff’s motion for summary judgment
and to conduct further proceedings according to law.
Our resolution of this appeal is informed by the fol-
lowing procedural history. This controversy arose from
LaVerne Perezi’s contraction of mesothelioma and her
subsequent commencement of a product liability action
(Perezi action), in August, 2012, against numerous
defendants, one of which was the plaintiff in the present
appeal.1 Thereafter, on February 19, 2013, the plaintiff
in the present appeal filed a motion to implead the
defendant in the present appeal, claiming that the defen-
dant was, or may have been, liable for all or part of
Perezi’s claim. On this same date, the plaintiff also filed
its answer, in which it claimed that it ‘‘did not exist at
the time of [Perezi’s] exposure to asbestos’’ and that it
‘‘never manufactured any products that contained any
type of asbestos.’’ On March 4, 2013, the court, Bellis, J.,
granted the plaintiff’s motion to implead the defendant.2
The plaintiff then served the defendant with a com-
plaint, which it labeled ‘‘Third-Party Complaint,’’ and
for reasons unknown to the parties and to this court,
the action was assigned a separate docket number. This
complaint is the operative complaint in the present
appeal.
Perezi, in her three count complaint, alleged in the
first count that ‘‘[e]ach of the defendants, and/or their
predecessors in interest . . . has produced, manufac-
tured or distributed asbestos and/or asbestos prod-
ucts,’’3 and that these products caused her to
contract mesothelioma.
The plaintiff’s complaint against the defendant con-
tained two counts, the first of which sounded in breach
of contract and the second of which sounded in contri-
bution and/or indemnification. In the complaint, the
plaintiff alleged the following:
‘‘On May 1, 1978, [the plaintiff] entered into an
agreement (the ‘1978 Agreement’) with McGraw-Edi-
son, a predecessor in interest to [the defendant], (the
‘Seller’), to purchase certain assets from McGraw-Edi-
son relating to McGraw-Edison’s dry-cleaning busi-
ness. . . .
acquired said assets of [McGraw-Edison], the Seller.
. . .
‘‘Under the 1978 Agreement, [McGraw-Edison], the
Seller, assumed and retained all liability for any subse-
quent claims made against [the plaintiff] or its succes-
sors based upon or arising out of [McGraw-Edison’s]
products and operations that occurred prior to May 1,
1978. . . .
‘‘Under the 1978 Agreement, [the defendant, as suc-
cessor in interest to McGraw-Edison], is contractually
obligated to defend and indemnify [the plaintiff] for the
claim submitted by . . . LaVerne Perezi in the [Perezi]
action. . . .
‘‘[The plaintiff] has repeatedly requested that [the
defendant] defend and indemnify [the plaintiff] in the
[Perezi] action, but [the defendant] has refused to do
so.’’
In the first count of the complaint, the plaintiff further
alleged that ‘‘[Perezi] alleges that she was injured as a
result of exposure to products at a dry-cleaning facility
in the early 1960s. Under the terms and conditions of
the 1978 Agreement, [the defendant] is contractually
obligated to defend and indemnify [the plaintiff] with
respect to the claims for relief asserted against [the
plaintiff] in the [Perezi action]. . . .
‘‘[The plaintiff] has demanded that [the defendant]
indemnify it for all defense costs, settlements, judgment
or other damages, losses, or expenses incurred by [the
plaintiff] as a result of the claims for relief asserted
against [the plaintiff] in the [Perezi] action. . . .
‘‘[The plaintiff] has fully performed all of its obliga-
tions under the 1978 Agreement. . . .
‘‘Despite [the plaintiff’s] demand, [the defendant] has
refused to perform its contractual obligations.’’
In the second count of the complaint, the plaintiff
further alleged the following:
‘‘Any negligence on behalf of [the plaintiff] was pas-
sive and secondary, while [the defendant’s] negligence
was active and primary. . . .
‘‘To the extent [the plaintiff] is held liable for any
portion of [Perezi’s] damages, if any, [the plaintiff] is
entitled to contribution or indemnification from [the
defendant] for the entire amount, plus costs and
interest.’’
On September 5, 2014, the plaintiff filed a motion for
partial summary judgment, alleging, inter alia, that there
was no genuine issue of material fact as to whether the
defendant was obligated to indemnify the plaintiff and
defend it in the Perezi action pursuant to the language in
the 1978 agreement between the plaintiff and McGraw-
Edison, the defendant’s predecessor in interest. Specifi-
cally, the plaintiff alleged in its memorandum of law in
support of the motion that on May 1, 1978, it had been
incorporated and that it had entered into a purchase
agreement by which it agreed to purchase certain assets
from the defendant’s predecessor in interest, McGraw-
Edison. The plaintiff also stated that in April, 1985,
the defendant had acquired McGraw-Edison, thereby
making the defendant a successor in interest with
respect to the 1978 agreement. The plaintiff alleged that
pursuant to the 1978 agreement, it had purchased a
plant facility in Ohio from McGraw-Edison, as well as
a trade name, ‘‘Martin,’’ which McGraw-Edison had used
in connection with a division of the company known as
‘‘Martin Equipment Sales.’’ The plaintiff further alleged
that section 5.1 of the 1978 agreement provided that it
had agreed to assume certain liabilities of McGraw-
Edison, but that this section also specified certain liabil-
ities that it had not assumed from McGraw-Edison. In
this vein, the plaintiff indicated that section 5.1 of the
1978 agreement specifically provided that the plaintiff
had not assumed ‘‘any liabilities or obligations, whether
contingent or absolute, accrued or unaccrued, or known
or unknown, for . . . product liability claims that
relate to any products manufactured, sold and shipped
by McGraw-Edison . . . or its predecessors prior to
the Closing . . . .’’ (Emphasis omitted.) The plaintiff
further stated that section 14.9 of the 1978 agreement
provided that the defendant, as successor in interest
to McGraw-Edison, had agreed to pay all costs and
expenses that the plaintiff would incur if it were to be
named as a defendant in a lawsuit relating to any liability
retained by the defendant pursuant to section 5.1 of
the 1978 agreement.4
In the memorandum of law in support of its motion,
the plaintiff also alleged that Perezi had claimed in her
action that ‘‘she could have come into contact with
asbestos-containing products directly and through sec-
ondary exposure from two of her husbands.’’ Further-
more, on the basis of Perezi’s and her son’s deposition
testimony and pleadings in the Perezi action, the plain-
tiff alleged the following about the Perezi action: ‘‘With
respect to [the plaintiff], [Perezi] alleges liability [for
her contraction of mesothelioma] based upon her work,
and her former husband’s work, at a dry-cleaning facil-
ity. . . . Perezi ceased working at the dry-cleaning
facility in 1963—fifteen years before [McGraw-Edison,
the defendant’s predecessor in interest] sold assets and
the trade name to [the plaintiff]. . . . The only piece
of equipment in the facility that . . . Perezi can link
to [the plaintiff] is a dry-cleaning machine.’’ (Citations
omitted.) The plaintiff also argued that because the
1978 agreement was an unambiguous contract that had
been entered into by two sophisticated commercial enti-
ties, the court must enforce the agreement’s terms as
written. Thus, the plaintiff referred to the language in
section 5.1 of the 1978 agreement and argued that it
was ‘‘undisputed’’ that the Perezi action brought against
the plaintiff should have been brought against the defen-
dant because the action related to ‘‘a product that was
manufactured, sold and shipped more than a decade
before the 1978 Agreement (indeed, before [the plain-
tiff] even existed).’’
The plaintiff also relied on the evidence submitted
in the Perezi action in support of its argument that there
was no genuine issue with respect to the defendant’s
obligation to defend and indemnify the plaintiff under
the 1978 agreement. Specifically, the plaintiff asserted
the following: ‘‘The sole evidence supporting any claim
by . . . Perezi against [the plaintiff] is the [deposition]
testimony of [her] son. . . . According to [Perezi’s
son], a dry-cleaning machine in the store where . . .
Perezi and her husband worked in the 1950s and early
1960s was stamped, ‘Martin’—the trade name then
being used by [McGraw-Edison, the defendant’s prede-
cessor in interest]. . . . It was the only piece of equip-
ment in the store that had such a marking. . . . Perezi
was exposed to this machine (either on her own or
through washing the clothes of her husband until only
1963 at the latest.’’ (Citations omitted.) Therefore, the
plaintiff argued that it ‘‘did not and could not’’ have
manufactured, sold, or shipped the alleged asbestos-
containing dry-cleaning machine to which Perezi was
exposed because the plaintiff did not even exist until
1978, which the plaintiff noted was at least fifteen years
after Perezi’s alleged exposure. Thus, the plaintiff
argued that pursuant to section 5.1 of the 1978
agreement, the defendant, as McGraw-Edison’s succes-
sor in interest, was indisputably obligated to indemnify
the plaintiff for its defense in the Perezi action because
the ‘‘Martin’’ stamped dry-cleaning machine was manu-
factured, sold, and shipped before 1978, thereby fore-
closing the possibility that the plaintiff was liable for
the harm that the machine had caused to Perezi.
The plaintiff attached the following documents to its
motion for partial summary judgment: a copy of the
1978 agreement; the plaintiff’s Ohio and Delaware incor-
poration documents; printed copies of the defendant’s
business webpage; Perezi’s medical records; transcripts
of Perezi’s deposition and her son’s deposition; billing
records for the plaintiff’s attorneys; copies of several
pleadings, discovery requests, and discovery responses
from the Perezi action; and copies of correspondence
between counsel for the plaintiff during the 1970s and
various Delaware and Ohio state officials. Additionally,
the plaintiff submitted two affidavits, including one in
which the plaintiff’s attorney was the affiant and
another in which the plaintiff’s vice president and secre-
tary, Erin M. Welte, was the affiant.
In her September 3, 2014 affidavit, Welte averred that
she had been employed by the plaintiff since July 22,
2002, and that her duties included ‘‘review of Franchise
Agreements, review and maintenance of all contracts
with vendors and third parties, updating Martin’s Fran-
chise Disclosure Document pursuant to FTC regula-
tions, maintenance of all legal files on behalf of the
company, and interaction with attorneys, human
resources and office management.’’ Welte made several
averments with respect to the plaintiff’s corporate his-
tory and its relationship to the defendant, and she also
made averments about the 1978 agreement, stating that
‘‘[p]ursuant to the [a]greement, [the plaintiff] purchased
certain assets from [the defendant], including . . . a
trade name that [the defendant] used in connection with
a division of the company known as ‘Martin Equipment
Sales.’ ’’ Furthermore, Welte averred that ‘‘[t]he trade
name acquired from [the defendant] was the name ‘Mar-
tin,’ which [the plaintiff] took as part of its corporate
name two months after the transaction with [the defen-
dant],’’ that ‘‘McGraw-Edison used the Martin or ‘Marti-
nizing’ name to market some of its products,’’ that
‘‘[s]ome of the equipment made by [the defendant]
under the trade name ‘Martin’ was dry-cleaning equip-
ment,’’ and that ‘‘[the plaintiff] has no record of
McGraw-Edison ever . . . manufacturing, distributing
or selling any dry-cleaning machine that contained
asbestos.’’
The defendant filed its answer to the plaintiff’s com-
plaint on October 7, 2014. In its answer to the first
count, the defendant denied that it was contractually
obligated to defend and indemnify the plaintiff in the
Perezi action. The defendant also summarily denied
the allegations in the second count of the complaint.
Furthermore, the defendant pleaded two special
defenses, the first of which was that the plaintiff’s claim
was barred by the statute of limitations set forth in
General Statutes § 52-576, and the second of which was
that ‘‘[t]o the extent that [the plaintiff’s] claim is one
for indemnification, it is premature as its own liability
for any claim has not yet been determined.’’
On October 9, 2014, the defendant filed its motion in
opposition to the plaintiff’s motion for partial summary
judgment and an accompanying memorandum of law,
in which it argued that the plaintiff was not entitled to
summary judgment because it had failed to satisfy its
burden of proving the nonexistence of any genuine issue
of material fact. The defendant primarily contested the
validity of Welte’s affidavit. The defendant argued in
its opposition memorandum that Welte had not demon-
strated personal knowledge of, or offered any other
evidentiary foundation for, the averments in her affida-
vit, particularly her averments that the plaintiff had
acquired the ‘‘Martin’’ trade name from McGraw-Edison
pursuant to the 1978 agreement,5 that McGraw-Edison
had used the ‘‘Martin’’ or ‘‘Martinizing’’ name to market
some of its products, and that some of the equipment
that the defendant had made under the ‘‘Martin’’ trade
name was dry-cleaning equipment. The defendant
argued that the deposition testimony of Perezi’s son
was also dubious because he had testified about events
that had occurred when he was younger than ten years
old, nearly fifty years earlier.
On October 16, 2014, the court, Hon. Richard P.
Gilardi, judge trial referee, issued an order granting
summary judgment to the plaintiff. In its order, the
court stated that it ‘‘finds that there can be no factual
dispute as to the defendant’s obligation to hold the
plaintiff harmless under the 1978 agreement and that
claims have been filed for which the defendant [has]
the obligation to provide a defense and potentially,
damages.’’
On February 4, 2015, the Perezi action was withdrawn
as to all defendants. Following the grant of summary
judgment to the plaintiff, the court, Hon. Edward F.
Stodolink, judge trial referee, held a hearing in damages
on February 19, 2015. At the conclusion of the hearing,
the court issued an order awarding the plaintiff
$35,844.58 for reasonable attorney’s fees, which repre-
sented the cost of the plaintiff’s defense in the Perezi
action. Judge Stodolink specifically stated that he had
reviewed the affidavits submitted in the matter in reach-
ing his decision in favor the plaintiff. On March 10,
2015, the defendant filed the present appeal, challenging
the court’s order granting summary judgment to the
plaintiff.
On April 8, 2015, the defendant filed a motion for
articulation pursuant to Practice Book § 66-5, wherein
it sought that the court ‘‘articulate the facts upon which
it based its conclusion that [the] defendant had an obli-
gation to hold [the] plaintiff harmless and indemnify it
under the 1978 Agreement and on what basis it con-
cluded that the plaintiff showed that there are no genu-
ine issues of material fact to be adjudicated.’’
The court issued an articulation on May 12, 2015, in
which it summarized the parties’ submitted proof and
clarified its reasoning in reaching the conclusion that
there was no genuine issue of material fact with respect
to the defendant’s obligation, under the 1978 agreement,
to defend and indemnify the plaintiff for the Perezi
action. The articulation reflects that, over the defen-
dant’s objection, the court relied on Welte’s affidavit in
granting the plaintiff summary judgment. Most notably,
the court stated in the articulation that Welte’s affidavit
showed that the dry-cleaning equipment made by
McGraw-Edison, the defendant’s predecessor in inter-
est, used the ‘‘Martin’’ trade name and that the plaintiff
also had purchased the ‘‘Martinizing’’ trade name pursu-
ant to the 1978 agreement. The court also accepted
the plaintiff’s proof, pursuant to Perezi’s and her son’s
deposition testimony, that the alleged asbestos-con-
taining dry-cleaning machine to which Perezi was
exposed bore the ‘‘Martin’’ stamp and that the dry-clean-
ing facility in which Perezi worked at the time used the
‘‘Martinizing’’ trade name. Ultimately, the court deter-
mined that the documentary proof that the plaintiff had
attached to its motion for partial summary judgment—
which included the Welte affidavit and the transcripts
for the depositions of Perezi and her son—‘‘summarily
show[ed] that the defendant’s predecessor, McGraw-
Edison, manufactured and/or delivered a product sev-
eral years before the [1978 agreement] and which is the
subject of the claim of product liability filed against
the plaintiff, and as such, obligated the defendant [to]
comply with the [hold] harmless requirement included
in the [1978 agreement].’’ The court also emphasized
that the defendant had not submitted any affidavit or
documentary proof of its own in opposition to the plain-
tiff’s motion for partial summary judgment. Accord-
ingly, the court determined that summary judgment in
favor of the plaintiff was warranted, and it stated that
‘‘[h]ad this been a trial, it is the finding of the court
that a directed verdict would be required.’’
The defendant claims on appeal that the court
improperly rendered summary judgment in favor of the
plaintiff. It argues that the court erred in this regard
because it improperly concluded that the plaintiff had
met its evidentiary burden in moving for summary judg-
ment where one of the crucial pieces of evidence that
it submitted was Welte’s affidavit, which failed to
resolve all of the issues of material fact in the plaintiff’s
action in the plaintiff’s favor due to Welte’s failure to
show affirmatively that she had personal knowledge of
the substance of the averments set forth in her affidavit.
We agree with the defendant that the court erred on this
ground and we therefore reverse the court’s summary
judgment rendered in favor of the plaintiff.6
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. Practice Book [§ 17-49] provides that
summary judgment shall be rendered forthwith 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 judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . A material fact
. . . [is] a fact which will make a difference in the result
of a case. . . . [T]he scope of our review of the trial
court’s decision to grant the plaintiff’s motion for sum-
mary judgment is plenary.’’ (Internal quotation marks
omitted.) Romprey v. Safeco Ins. Co. of America, 310
Conn. 304, 312–13, 77 A.3d 726 (2013). The issue, how-
ever, of ‘‘[w]hether the court should have considered
. . . [an] affidavit submitted by the [movant for sum-
mary judgment] presents an evidentiary issue to which
we apply an abuse of discretion standard of review.’’
Bruno v. Geller, 136 Conn. App. 707, 716, 46 A.3d 974,
cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
‘‘The courts are in entire agreement that the moving
party for summary judgment has the burden of showing
the absence of any genuine issue as to all the material
facts, which, under applicable principles of substantive
law, entitle him to judgment as a matter of law. The
courts hold the movant to a strict standard. To satisfy
his burden the movant must make a showing that it is
quite clear what the truth is, and that excludes any
real doubt as to the existence of any genuine issue
of material fact.’’ (Internal quotation marks omitted.)
Ramirez v. Health Net of the Northeast, Inc., 285 Conn.
1, 11, 938 A.2d 576 (2008). As a part of the required
showing in this regard, the movant for summary judg-
ment must support the motion with admissible
evidence.
Pursuant to Practice Book § 17-45, a motion for sum-
mary judgment must be supported by appropriate docu-
ments that pertain to the material facts of the matter,
‘‘including but not limited to affidavits, certified tran-
scripts of testimony under oath, disclosures, written
admissions and the like. . . .’’7 ‘‘Supporting and oppos-
ing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated therein.
. . .’’8 (Emphasis added.) Practice Book § 17-46. Where
the affidavits of the moving party do not affirmatively
show that there is no genuine issue of material fact as
to all relevant issues in the case, summary judgment
should be denied. Romprey v. Safeco Ins. Co. of
America, supra, 310 Conn. 320; Doty v. Shawmut Bank,
58 Conn. App. 427, 431, 755 A.2d 219 (2000); Walker v.
Lombardo, 2 Conn. App. 266, 269, 477 A.2d 168 (1984).
In the present appeal, the defendant challenges the
court’s conclusion that Welte’s affidavit was properly
submitted as proof in support of the plaintiff’s motion
for summary judgment. Specifically, the defendant
argues the following in its brief: (1) Welte’s affidavit
contains statements of material fact about which her
affidavit does not show affirmatively that she is compe-
tent to testify; and (2) the 1978 agreement contradicts
Welte’s averments in her affidavit insofar as the
agreement does not make reference to a company divi-
sion known as ‘‘Martin Equipment Sales,’’ to a ‘‘Martin’’
trade name, or to McGraw-Edison using the name ‘‘Mar-
tin’’ to market its products. The defendant thus claims
that the court erred in rendering summary judgment in
favor of the plaintiff because, contrary to the court’s
conclusion, in the absence of Welte’s affidavit, which
the court should not have considered, the plaintiff failed
to meet its burden of establishing that there was no
genuine issue with respect to a crucial material fact: that
a dry-cleaning machine to which Perezi was exposed at
some point between 19579 and 1962—which allegedly
bore the name ‘‘Martin’’ on it and which contained
asbestos fibers in at least some of its components—
was, according to the language in the 1978 agreement, a
‘‘[product] manufactured, sold and shipped by McGraw-
Edison or its predecessors prior to the [1978] Closing
. . . .’’ (Emphasis omitted.)
In opposition, the plaintiff argues that the court prop-
erly rendered summary judgment in its favor because
it had met its burden of establishing that there was
no genuine issue as to whether the alleged asbestos-
containing dry-cleaning machine to which Perezi was
exposed at some point prior to 1962 had been manufac-
tured, sold, and shipped by McGraw-Edison, or its pre-
decessors, prior to 1978. Specifically, the plaintiff
argues that the documentary evidence submitted to the
court at the summary judgment stage of the proceed-
ings, including Welte’s affidavit, indisputably estab-
lished that the Perezi action was a ‘‘claim’’ contemplated
by the 1978 agreement and that it related to a product
that had been manufactured, sold, and shipped by
McGraw-Edison or one of its predecessors, not the
plaintiff, primarily because the plaintiff did not exist
until 1978 and Perezi was exposed to a dry-cleaning
machine that contained asbestos at some point prior
to 1962. We disagree with the plaintiff’s argument and
conclude that the proof submitted in support of the
plaintiff’s motion for summary judgment did not resolve
all genuine issues of material fact in the plaintiff’s favor.
In Evans Products Co. v. Clinton Building Supply,
Inc., 174 Conn. 512, 391 A.2d 157 (1978), an appeal from
summary judgment in a contract action, our Supreme
Court analyzed the issue of whether the trial court prop-
erly had admitted three affidavits that the plaintiff had
submitted in support of its motion for summary judg-
ment. Id., 513. The plaintiff’s assistant secretary was
the affiant in one of the affidavits, and he made oath
that the amount of money that was alleged in the con-
tract action to be ‘‘due and owing to the plaintiff . . .
[was], in all respects, correct, just and true, and that
no payments [had] been made thereon and that there
[were] no offsets or counterclaims thereto.’’ (Internal
quotation marks omitted.) Id., 514 n.1. After hearing
the parties’ arguments, the trial court granted summary
judgment against the defendants and awarded the plain-
tiff damages. Id., 513.
On appeal, the defendants claimed that the affidavit
was admitted improperly because the plaintiff’s assis-
tant secretary failed to show personal knowledge of
the amount of debt that was owed to the plaintiff. Id.,
513–14. In examining the affidavit at issue, our Supreme
Court noted that ‘‘there is no affirmative showing of
personal knowledge in the affidavit, such as a statement
that the affiant is familiar with the [defendant’s]
account, or even that he is familiar with or controls
the plaintiff’s business records.’’ Id., 515. Moreover, the
court stated that ‘‘[w]hile there is some authority for
the proposition that a corporate officer presumptively
has personal knowledge of the matters stated in an
affidavit made on behalf of the corporation . . . in our
view the better rule is that followed by the federal
courts: in summary judgment proceedings, affidavits
made by corporate officers and other parties must aver
or affirmatively show personal knowledge of the mat-
ters stated therein.’’ (Citations omitted.) Id.;10 see also
Monroe v. Board of Education, 65 F.R.D. 641, 648 (D.
Conn. 1975) (holding certain portions of affidavit inad-
missible where submitted by superintendent of school
system on behalf of board of education and where affi-
ant did not show personal knowledge of circumstances
surrounding plaintiff student’s expulsion, despite mak-
ing averments about same).
In the present case, the Welte affidavit was of crucial
importance to the plaintiff’s motion for summary judg-
ment because in the absence of her affidavit, the proof
submitted by the plaintiff in support of its motion could
not have provided the court with an adequate basis to
conclude that there was no genuine issue with respect
to whether the dry-cleaning machine to which Perezi
was exposed prior to 1962 was one that had been manu-
factured, sold, and shipped by McGraw-Edison or any
of its predecessors prior to 1978. In her affidavit, Welte
made several averments that related to this issue: (1)
she averred that McGraw-Edison, the defendant’s pre-
decessor in interest, had a company division called
‘‘Martin Equipment Sales’’ from which the plaintiff had
purchased a trade name pursuant to the 1978
agreement; (2) she averred that the plaintiff had pur-
chased the ‘‘Martin’’ trade name from McGraw-Edison;
(3) she averred that McGraw-Edison had used the ‘‘Mar-
tin’’ or ‘‘Martinizing’’ name to market some of its prod-
ucts; (4) she averred that some of the equipment made
by McGraw-Edison under the ‘‘Martin’’ trade name
included dry-cleaning equipment; and (5) she averred
that the plaintiff had no record of McGraw-Edison ever
manufacturing, distributing, or selling any dry-cleaning
machine that contained asbestos. Despite these aver-
ments and the trial court’s conclusion that the Welte
affidavit, along with the other documentary proof sub-
mitted by the plaintiff in support of its motion for sum-
mary judgment, ‘‘summarily show[ed] that . . .
McGraw-Edison manufactured and/or delivered’’ the
asbestos-containing dry-cleaning machine to which Per-
ezi was exposed at some point prior to 1962, we con-
clude that this proof, and the Welte affidavit in
particular, failed to adequately show the nonexistence
of a genuine issue of material fact in this case.
Pursuant to our Supreme Court’s holding in Evans
Products Co. v. Clinton Building Supply, Inc., supra,
174 Conn. 515, we do not presume that Welte, as a
corporate officer for the plaintiff, was competent to
make averments as to the matters stated in her affidavit.
Therefore, in order for Welte’s affidavit to be admissible
as supporting evidence for the plaintiff’s motion for
summary judgment, she was required to affirmatively
show that she had personal knowledge of the matters
stated in her affidavit. Welte failed to meet this require-
ment because she did not affirmatively state in her
affidavit that she had reviewed the business records of
the plaintiff. Furthermore, Welte did not affirmatively
state that she had any basis for knowing that McGraw-
Edison had a division called ‘‘Martin Equipment Sales’’
from which the plaintiff purchased a trade name under
the 1978 agreement, that the plaintiff had acquired the
‘‘Martin’’ trade name from McGraw-Edison, that
McGraw-Edison had used the ‘‘Martin’’ or ‘‘Martinizing’’
trade names to market some of its products, or that
McGraw-Edison manufactured dry-cleaning equipment
under the trade name ‘‘Martin.’’ In the absence of such
an affirmative showing, the possibility that some com-
pany other than McGraw-Edison or one of its predeces-
sors manufactured dry-cleaning equipment bearing the
‘‘Martin’’ trade name during the 1950s and early 1960s
cannot be foreclosed.11
Although Welte averred that her position as the plain-
tiff’s vice president and secretary required her to review
and maintain franchise agreements, contracts with third
parties, and all legal files relating to the company, she
did not make any reference to her review of any of these
records as they relate to the defendant’s predecessor in
interest, McGraw-Edison, or any of its predecessors,
which is an essential factor in construing the defen-
dant’s obligations under the 1978 agreement. Further-
more, Welte, who began working for the plaintiff
approximately forty-four years after the time period
during which Perezi could have been exposed to the
asbestos-containing dry-cleaning machine at issue,
failed to refer to a chronology in her affidavit with
respect to when the plaintiff acquired certain trade
names or when the defendant’s predecessor in interest,
McGraw-Edison, manufactured, sold, or shipped any
dry-cleaning products bearing the ‘‘Martin’’ or ‘‘Marti-
nizing’’ trade names. In light of the shortcomings of
Welte’s averments, we conclude that the court abused
its discretion by deeming Welte’s affidavit to be admissi-
ble in support of the plaintiff’s motion for summary
judgment. The affidavit did not comply with Practice
Book § 17-46 because there was no affirmative showing
that Welte was competent to testify to the plaintiff’s
past relationship with McGraw-Edison, the ‘‘Martin’’
and ‘‘Martinizing’’ trade names, or the company division
known as ‘‘Martin Equipment Sales.’’ For instance,
Welte did not state that she had reviewed any specific
documents that would give her personal knowledge of
these matters and she did not otherwise aver as to her
involvement in those matters. In reaching our conclu-
sion, we are mindful of our Supreme Court’s assertions
relating to summary judgment proceedings that ‘‘[i]t is
especially appropriate to hold an affidavit submitted by
a moving party to a stringent standard’’ and that ‘‘the
nonmovant is . . . given the benefit of all favorable
inferences that can be drawn.’’ Evans Products Co. v.
Clinton Building Supply, Inc., supra, 174 Conn. 516.
As our Supreme Court did in Evans Products Co. v.
Clinton Building Supply, Inc., supra, 174 Conn. 516–17,
we next examine whether the court’s improper accep-
tance and reliance upon the Welte affidavit as proof of
the nonexistence of a genuine issue of material fact was
harmful to the defendant as the opponent of summary
judgment. We conclude that the court’s reliance upon
of the Welte affidavit was harmful to the defendant in
this case. Aside from the Welte affidavit, the other
proof12 that the plaintiff submitted in support of its
motion for summary judgment did not adequately estab-
lish that there was no genuine issue with respect to the
material fact at issue in this appeal: whether a dry-
cleaning machine to which Perezi was exposed at some
point between 1957 and 1962—which allegedly bore
the name ‘‘Martin’’ on it and which contained asbestos
fibers in at least some of its components—was,
according to the language in the 1978 agreement, a
‘‘[product] manufactured, sold and shipped by McGraw-
Edison or its predecessors prior to the [1978] Closing
. . . .’’ (Emphasis omitted.) Accordingly, the court
erred in rendering summary judgment in favor of the
plaintiff.
The judgment is reversed and the case is remanded
with direction to deny the plaintiff’s motion for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other judges concurred.
1
On September 14, 2013, Perezi died and the executrix of her estate
pursued the action in her place.
2
The court ordered the plaintiff to serve the defendant by March 21, 2013,
and to designate a return date of April 2, 2013.
3
The second count made allegations against only a single defendant,
Metropolitan Life Insurance Company. The third count once again made
allegations against all defendants, including the plaintiff in the present
appeal. Specifically, Perezi alleged in the third count that the defendants
committed acts and/or omissions that constituted ‘‘grossly negligent, willful,
wanton, malicious and/or outrageous’’ misconduct because, despite the fact
that they had knowledge of medical and scientific data concerning the
harmful health effects of asbestos and asbestos-containing products, they
continued to manufacture products that contained asbestos.
4
Specifically, the plaintiff alleged that ‘‘[i]n subpart (b) of Section 14.9,
‘McGraw-Edison [Cooper] agrees to indemnify and hold [Martin] harmless
from and against any and all damages arising out of that claim.’ ’’
5
The defendant further pointed out in its memorandum of law that the
1978 agreement specifically referenced the trade names that the plaintiff
acquired from McGraw-Edison, and that none of these expressly stated trade
names include ‘‘Martin.’’
6
The defendant also claims that the court erred by applying an erroneous
standard as to the procedural burden of the opponent of a motion for
summary judgment. Specifically, the defendant argues that the court seem-
ingly based its decision to grant summary judgment in favor of the plaintiff
upon the defendant’s failure to submit any supporting affidavits or other
evidence in opposition to the plaintiff’s motion for summary judgment. This
basis for the court’s decision, the defendant argues, constitutes reversible
error because pursuant to Connecticut case law, the burden never shifted
to the defendant to produce such evidence because the plaintiff had failed
to satisfy its own, prerequisite burden of producing admissible evidence in
support of its motion for summary judgment.
In Mott v. Wal-Mart Stores East, LP, 139 Conn. App. 618, 57 A.3d 391(2012), this court noted that ‘‘pursuant to Practice Book §§ 17-45 and 17-46,
a party opposing a summary judgment motion must provide an evidentiary
foundation to demonstrate the existence of a genuine issue of material
fact. . . . [T]ypically [d]emonstrating a genuine issue requires a showing
of evidentiary facts or substantial evidence outside the pleadings from which
material facts alleged in the pleadings can be warrantably inferred. . . .
‘‘An important exception exists, however, to the general rule that a party
opposing summary judgment must provide evidentiary support for its opposi-
tion, and that exception has been articulated in our jurisprudence with less
frequency than has the general rule. On a motion by [the] defendant for
summary judgment the burden is on [the] defendant to negate each claim
as framed by the complaint. . . . It necessarily follows that it is only [o]nce
[the] defendant’s burden in establishing his entitlement to summary judg-
ment is met [that] the burden shifts to [the] plaintiff to show that a genuine
issue of fact exists justifying a trial.’’ (Citation omitted; internal quotation
marks omitted.) Id., 625–26. Accordingly, ‘‘[w]hen documents submitted in
support of a motion for summary judgment fail to establish that there is
no genuine issue of material fact, the nonmoving party has no obligation to
submit documents establishing the existence of such an issue.’’ (Emphasis
added.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004);
accord Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 491, 280 A.2d
359 (1971); Mott v. Wal-Mart Stores East, LP, supra, 139 Conn. App. 627.
In the present case, insofar as it appears that the court required the
defendant, as opponent to summary judgment, to produce affidavits and
other documentary evidence to demonstrate the existence of a genuine issue
of material fact when the plaintiff, as movant for summary judgment, had not
first satisfied its own burden of producing affidavits and other documentary
evidence to demonstrate the nonexistence of such an issue, we agree with
the defendant that the court erred. Nevertheless, we need not discuss this
error in further detail because we conclude that the court committed revers-
ible error by accepting and relying upon the Welte affidavit and thereby
concluding that the plaintiff was entitled to summary judgment because it
had met its evidentiary burden as the movant.
7
A party opposing a motion for summary judgment also must, ‘‘at least
five days before the date the motion is to be considered on the short calendar
file opposing affidavits and other available documentary evidence.’’ Practice
Book § 17-45.
8
Practice Book § 17-46 further provides in relevant part that ‘‘[s]worn or
certified copies of all papers or parts thereof referred to in an affidavit shall
be attached thereto.’’
9
The plaintiff represented to this court that the year in which McGraw-
Edison was founded was 1957.
10
Accordingly, our Supreme Court concluded that the trial court erred
by accepting and relying upon at least one of the plaintiff’s affidavits, but
it nevertheless concluded that this error was harmless in light of other
evidence which it deemed to have been properly considered by the trial
court. Evans Products Co. v. Clinton Building Supply, Inc., supra, 174
Conn. 516–18.
11
In fact, at oral argument before this court, the plaintiff’s attorney con-
ceded that it was not known that there was no other company that marketed
dry-cleaning products or franchises using the ‘‘Martin’’ or ‘‘Martinizing’’ trade
names during the time of Perezi’s possible exposure.
12
As previously stated in this opinion, this documentary proof included
the following: a copy of the 1978 agreement; the plaintiff’s 1978 certificate
of incorporation for the state of Delaware; the plaintiff’s application to
transact business as a foreign corporation in the state of Ohio; an official
statement of incorporation from the secretary of the state of Delaware;
correspondence written to the secretary of the state of Ohio, wherein the
Ohio attorneys representing the plaintiff in 1978 indicated that the plaintiff
had changed its name from ‘‘GJM Corporation’’ to ‘‘Martin Franchises, Inc.’’;
correspondence written to the secretary of the state of Ohio, wherein the
Ohio attorneys representing the plaintiff in 1978 had enclosed the plaintiff’s
license as a foreign, for profit corporation seeking to transact business in
Ohio; an official certificate issued by the secretary of the state of Ohio
indicating that it had retained the plaintiff’s records of incorporation; a
printout of the defendant’s corporate website, which included information
about the defendant’s products and services, its corporate structure, and
its history; an affidavit in which the plaintiff’s attorney in the present appeal
was the affiant; a copy of Perezi’s first amended complaint in the Perezi
action; several pleadings from the Perezi action; Perezi’s medical records;
the transcript of Perezi’s October 22, 2012 deposition; the transcript of
Perezi’s son’s April 9, 2014 deposition; and the billing records for the plain-
tiff’s attorneys in the Perezi action.