Opinion
No. CV 07-6000782S
September 26, 2008
MEMORANDUM OF DECISION
The plaintiff, States Resources Corporation (States), has moved for summary judgment against the defendants, Oakcliff Convalescent Home, Inc. (Oakcliff) and The Cruess Realty Company (Cruess), on counts one and two of its complaint dated August 13, 2007. In count one, States alleges breach of contract against Oakcliff for defaulting on a promissory note executed between Oakcliff and Heritage Bank dated December 19, 1990, which through assignment is now held and owned by States. In count two, States alleges breach of contract against Cruess, as guarantor for the promissory note.
The plaintiff moves for summary judgment on the ground that no genuine issue of material fact exists with regards to the defendants' liability or the amount owed. The plaintiff argues that the pleadings and its attached affidavits clearly establish all the essential elements of its complaint and that there are no defenses relating to the liability of the defendants. While neither defendant disputes their respective breaches as relating to liability, they maintain that there remains a genuine issue of material fact with respect to the amount of damages owed. Oral argument was heard before this court on September 15, 2008.
DISCUSSION
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. (Internal quotation marks omitted.)
Barnett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004).
The court holds the movant to a strict standard. To satisfy [its] 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party to merely assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. (Internal quotation marks omitted.)
Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case. (Citation omitted; internal quotation marks omitted.)
Bell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
The pleadings and affidavits in this case demonstrate that there are no genuine issues of material fact relating to the defendants' liability. In the defendants' answer, they have admitted to having defaulted as to both the promissory note and the guaranty agreement. An admission in a defendants' answer to an allegation in a complaint is binding as a judicial admission . . . An admission in pleadings dispenses with proof, and is equivalent to proof . . . It is the full equivalent of uncontradicted proof of these facts by credible witnesses and is conclusive on the pleader. (Citations omitted; internal quotation marks omitted.) MacDonald v. Pinto, 62 Conn.App. 317, 321, 771 A.2d 156 (2001). A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 52 Conn.App. 545, 551, 727 A.2d 755 (1999), aff'd, 253 Conn. 416, 752 A.2d 509 (2000); see also Kopacz v. Day Kimball Hospital of Windham County, Inc., 64 Conn.App. 263, 272, 779 A.2d 862 (2001) (same). The defendants' admissions in the answer, as judicial admissions, are conclusive upon them that they owe an unpaid debt to the plaintiff. In addition, the plaintiff submitted the affidavit of Blake Vardaman, the plaintiff's vice president, who averred that the defendants have defaulted upon their obligations. Based upon the defendants' admissions and Vardaman's affidavit, the plaintiff has sufficiently satisfied its burden of showing the absence of any material fact regarding the existence of an unpaid debt owed by the defendants to the plaintiff.
While the defendants have admitted liability, they maintain that summary judgment is not proper because genuine issues of material fact exist with respect to damages owed. Unlike their admissions to allegations involving liability, the defendants have left the plaintiff to its proof regarding the alleged amount owed. The defendants also provided the court with the affidavit of Raymond Cruess, the president of both Oakcliff and Cruess, in which he stated that he did not know the exact amount owed to the Plaintiff, but believes it to be less than the amount claimed by the Plaintiff.
The defendants further argue that Vardaman's affidavit contains facts the would not be admissible at trial. In his affidavit, he states the amount owed by referring to documents that he has attached to his affidavit. The defendants contend that the stated amount owed and the records on which it is based are inadmissable as hearsay and that the records do not fit into the business record exception.
Hearsay is [a]n out-of-court statement used to prove the truth of the matter asserted . . . and is generally inadmissible unless an exception applies. (Internal quotation marks omitted.)
Pirolo v. Dejesus, 97 Conn.App. 585, 588, 905 A.2d 1210 (2006). General Statutes 52-180 governs the business record exception to the hearsay rule. To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter . . . To qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met. (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 696, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).
General Statutes 52-180(a) provides: Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. General Statutes 52-180(b) provides: The writing or record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
The requirements for authenticating a business record are identical to those for laying a foundation for its admissibility under the hearsay exception. It is generally held that business records may be authenticated by the testimony of one familiar with the books of the concern, such as a custodian or supervisor, who has not made the record or seen it made, that the offered writing is actually part of the records of the business. (Internal quotation marks omitted.) Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 811, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).
While 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 . . . the better rule is . . . in summary judgment proceedings, affidavits made by corporate officers and other parties, must aver or affirmatively show personal knowledge of the matters stated therein. (Citations omitted.) Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 515, 391 A.2d 157 (1978).
The Evans Products case appears to acknowledge . . . that a statement that an individual is familiar with or controls the [party's] business records shows the personal knowledge of the affiant . . . Moreover, courts have determined that affidavits indicating that the affiant was familiar with the subject matter of [the] suit . . . or fully familiar with the facts set forth herein . . . complied with the requirements of Practice Book § 17-46. (Citations omitted; internal quotation marks omitted.) Chemical Mortgage Co. v. Carbone, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 059462 (December 16, 1998, Curran, J.).
In support of its claim for damages, the plaintiff has submitted a sworn affidavit from one of its employees, Blake Vardaman, wherein he attests that he is the vice president of States and is familiar with the books and records of States and that he has personal knowledge of all statements sworn to herein. Vardaman, however, does not attest that: the documents attached to his affidavit were created in the ordinary course of business; it was the plaintiff's regular course of business to create such documents; and such documents have been maintained by the plaintiff, as part of its business, as a record of the events described therein.
The court concludes that Vardaman's affidavit fails to establishe a foundation for admitting the exhibit as a business record and that there is a question of fact as to the amount the defendants owe the plaintiff.
Accordingly, because there is a question of fact as to the amount of damages, the court will grant the plaintiff's motion for summary judgment as to liability only, pursuant to Practice Book § 17-50. See Dime Savings Bank v. Grossman Acquisitions, Superior Court, judicial district of New Haven, Docket No. CV 99 0431345 (December 28, 2000, Jones, J.)
Practice Book § 17-50 provides in relevant part: A summary judgment motion, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such a case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of damages.
Summary judgment as to liability only enters in favor of the plaintiff, against the defendants, and, pursuant to § 17-50, the court orders that this matter be scheduled for a hearing to determine the amount of damages owed by the defendants.