Opinion
No. CV05-4014427S
October 3, 2007
MEMORANDUM OF DECISION
The plaintiff brings this action to collect $47,000 which it claims the defendant owes. The defendant, while not denying the existence of the loan, challenges the plaintiff's right to collect the debt, claiming that the debt was repaid. Although, during trial and in post-trial briefs the defendant argued that he repaid the debt, prior to trial, in his Answer, he failed to deny the allegations of nonpayment or to plead payment as a Special Defense. The plaintiff filed a Motion to Preclude introduction of evidence regarding payment because the defendant had failed to specially plead it as a Defense. Motion to Preclude, dated August 17, 2007. This court denied the motion. The parties presented evidence during the court-side trial on August 17, 2007 and submitted Post-Trial Briefs on September 14, and September 17, which included proposed findings of fact. For reasons more specifically articulated in this plaintiff's case, which the court treats as a Motion for Dismissal pursuant to Connecticut Practice Book § 15-8, and finds that the plaintiff has proven by a preponderance of the evidence that the defendant failed to repay the $47,000 loan.
In a Request to Admit, dated December 23, 2005, the Defendant admitted that he borrowed $47,000 from the plaintiff and that he promised to repay the monies. But, he denied that he did not repay the monies: "Denied (i.e. the monies were re-paid)." In his brief, the defendant states that `[i]n late 2004, the defendant made a series of payments to the plaintiff. The defendant submitted evidence that indicated these payments were made. The total of the defendant's payments to the plaintiff exceeded $47,000." Defendant's Post-Hearing Brief, dated September 14, 2007, p. 1.
The plaintiff's complaint alleges in First Count, paragraph 9, and Second Count, paragraph 9 that "Despite demand, Goldenberg failed to repay the Loan." In his Answer, the defendant "neither admits nor denies the allegations contained therein and leaves the Plaintiff to its proof"; and he filed no Special Defense with his Answer. Answer, dated December 1, 2005. Prior to trial, the defendant did not file a Request to Amend his Answer or to file a Special Defense or Counter-Claim.
At the close of plaintiff's evidence, defense counsel made an oral motion for verdict: "Your Honor, I'm not sure of the Practice Book provision, but there must be something in there allowing me to make an argument for a summary judgment or directive verdict in his favor." Trial Transcript, 8/17/07, p. 38, attached to Plaintiff's Post-Trial Brief as exhibit 6.
Connecticut Practice Book § 15-8 provides that: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case."
The court finds the following facts:
1. Lighthouse Design, Inc. was a Connecticut corporation conducting business in Hamden, Connecticut.
2. Herbert Setlow was the owner and sole shareholder of the plaintiff until his death in October 2004.
3. The Woodbridge Probate Court appointed Setlow's daughters, Marcie Setlow and Carolyn Sommer, as Co-Executrixes of the Estate of Herbert Setlow.
4. The Estate of Herbert Setlow owns the shares in the plaintiff.
5. Gerry Goldenberg was an employee of the plaintiff for many years.
The Complaint refers to the defendant as "Gerry S. Goldenberg." But, exhibits introduced at trial and correspondence from defense counsel refer to the defendant as "Jerry Goldenberg."
6. On or about June 15, 2000 the plaintiff loaned to the defendant the sum of twenty-three thousand ($23,000) dollars.
7. On or about July 12, 2000 the plaintiff loaned to the defendant the sum of twenty-four thousand ($24,000) dollars.
8. The defendant promised to repay the loan.
9. The defendant failed to repay the loan.
10. The loan is presently outstanding.
I.
The pleadings, admissions and evidence presented by the plaintiff establish that the plaintiff loaned the defendant $47,000 which the defendant promised to repay and which the defendant did not repay. Therefore, the plaintiff made a prima facie case and the defendant was not entitled to a judgment for dismissal pursuant to Practice Book § 15-8.
II.
Next, this court address the defendant's claim that he repaid the loan. First, there is no evidence to support this claim. The evidence submitted to the court establishes that over a period of time, the defendant paid monies to the plaintiff in the form of checks. The evidence established that these checks from the defendant were loans to the plaintiff. However, neither the checks themselves, nor the testimony presented at trial, prove that these monies were made in repayment of the loan. The bookkeeper testified regarding the checks which were referenced "DUE TO JERRY."
Q: Can you explain the due to Gerry account reference? What does that mean?
A: He had — gave money to Lighthouse. Lighthouse needed — as you can tell by the balance, it was negative $10,000 and Gerry had given — had borrowed — let Lighthouse Design borrow money, so he gave me a check.
Q: How do you know that Mr. Goldenberg had let Lighthouse Design borrow money?
A: Yeah, he did that often. He told — He would tell me, you know, I've got to give Lighthouse money. He would, you know — He would let Lighthouse Design borrow money and he would tell me, this is a loan. This is to Lighthouse.
Examination of Donna Debiase, Trial Transcript, 8/17/07, p. 30.
The bookkeeper also testified as to how she knew that checks coded "DUE TO JERRY" were loans from the defendant.
Q: And at that time, he told you that it was a loan to Lighthouse Design?
A: Otherwise I wouldn't have coded it, due to Gerry, yes.
Trial Transcript, p. 31.
The bookkeeper further testified that she never received any checks from the defendant for the repayment of the loans.
Q: Did Mr. Goldenberg, in this same time frame, advise you of any deposits that he made from his own account into Lighthouse's account in repayment of the $47,000 debt?
A: No, sir.
Q: During your time as bookkeeper of Lighthouse Design, was the $47,000 loan to Mr. Goldenberg ever repaid?
A: Not to my knowledge.
Trial Transcript, p. 34.
Accordingly, this court finds that no evidence was submitted at trial which proves that the defendant repaid the $47,000 loan to the plaintiff.
III.
Second, it would be improper for this court to consider the defendant's claim of payment, because the defendant failed to allege it as a Special Defense. Connecticut Practice Book requires that:
"No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of facts are untrue . . . Thus . . . payment (even though nonpayment is alleged by the plaintiff) . . . must be specially pleaded . . ."
"A defendant's failure to plead a special defense precludes the admission of evidence on the subject . . . See e.g., DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). Therefore, `the defendant's failure to assert [a defense] . . . in his pleadings [constitutes] a waiver of that defense and it should not [be] considered by the trial court.' Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 436, 651 A.2d 281 (1994). Consequently, the defendants may not rely on payment as a defense, as it has already waived that defense by failing to specifically plead it." Norwest Mortgage, Inc. v. Cook, Superior Court, judicial district of New London, Docket No. 546601 (February 15, 2000, Martin, J.). See also, Jo-Ann Stores, Inc. v. Property Operating Co., LLC., 91 Conn.App. 179, 199, 880 A.2d 945 (2005) (Because the defendant did not specifically plead waiver, it was improper for the trial court to have considered it at trial.); and Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 436-37, 651 A.2d 281 (1994) ("A defendant's failure to plead a special defense precludes admission of evidence on the subject . . .").
In his post-trial brief, the defendant argues that the amount of money he loaned to the plaintiff exceeds the amount of money he borrowed from the plaintiff. This may, in fact, be true. And, it does appear that the defendant would have had valid grounds to either file a Special Defense of payment or pursue a Counter-Claim. However, because he failed to file a Special Defense or Counter-Claim, the issues arising from his loans to the plaintiff are not properly before this court.
IV.
In conclusion, this court finds that there was an oral contract between the plaintiff and the defendant, whereby the plaintiff loaned the defendant $47,000, with the agreement that the defendant would repay the loan. This court further finds that the plaintiff has proven that the defendant breached the contract by failing to repay the loan of $47,000 to the plaintiff. Therefore, the court renders judgment on the First Count in favor of the plaintiff in the amount of $47,000. Because the court finds the cause of action alleged in the First Count proven, there is no need to consider the cause of action in the Second Count, which alleges unjust enrichment.