Opinion
No. MMX-CV065001463-S
April 20, 2010
MOTION TO OPEN JUDGMENT/MOTION FOR A NEW TRIAL #149, DATED MARCH 1, 2010
On January 19, 2010, the plaintiff filed Motion to Open Judgment #149, along with a copy of its requests for admissions and the defendant's answers thereto. On January 25, 2010, the defendant filed a motion in opposition to the plaintiff's motion to open the judgment. The motions were heard at the short calendar on March 1, 2010.
By way of background, on December 5, 2006, the plaintiff, Frank Barnaba, filed a two-count amended complaint against the defendant, Paul Lisa Program, Inc. Count one sounded in breach of contract and count two sounded in breach of the duty of good faith and fair dealing. In count one, the plaintiff, who is the founder, past president, and former director of the defendant, alleged that at various times between May 13, 2005, and January 2006, he loaned the defendant monies totaling $96,355.26. According to the plaintiff, the defendant paid back $42,000 and the plaintiff forgave $10,200 of the debt owed, leaving a balance of $44,155.26. The plaintiff alleged that the defendant refused to make further payments on the loan after he left the defendant's employment on June 30, 2006. The plaintiff incorporated these facts into count two, and further alleged that the defendant, by borrowing money from the plaintiff and agreeing to pay it back, owed the plaintiff a duty of good faith and fair dealing, which the defendant breached by failing to repay the loan.
On January 23, 2007, the defendant filed its answer, along with three special defenses and a three-count counterclaim. In its answer, the defendant admitted that "[p]rior to January 2005, in order to further and effectuate the purposes of the [d]efendant organization, the [p]laintiff has from time to time made loans to the [d]efendant, which the [d]efendant has agreed to pay back and has paid back to the [p]laintiff." (Revised complaint, paragraph 4.) The defendant also admitted that "[o]n or about November 22, 2005, the [d]efendant paid the [p]laintiff . . . [$40,000], and on December 14, 2005, the defendant paid the plaintiff . . . [$2,000] toward re-payment of its debt owing to the plaintiff." (Revised complaint, paragraph 7.) The defendant also admitted that "[o]n December 12, 2005, [the] [p]laintiff donated the sum of . . . [$5,000] to the [d]efendant by forgiving [$5,0000] on the principal balance of the loans; and again on or about January 16, 2006, [the] [p]laintiff made an additional donation of [$5,200] to the [d]efendant by forgiving that amount on the principal balance of the loans." (Revised complaint, paragraph 8.) The defendant did not admit, however, that the $96,355.26 it received from the plaintiff was a loan, and it did not admit that it agreed to pay that money back. In addition, the defendant pleaded three special defenses: that the defendant's board of directors never approved the loan; that the defendant used the alleged loan to pay the plaintiff's salary; and that the plaintiff made improper payments of expenses without board approval.
On April 23, 2007, the court, Aurigemma, J., entered a judgment of nonsuit in favor of the plaintiff on the counterclaims because the defendant failed to timely reply to the plaintiff's request to revise.
On April 27, 2008, Barnaba filed for bankruptcy, which the United States Bankruptcy Court granted on August 21, 2008. The court, Taylor, J., subsequently granted Barnaba's request to substitute Ronald Chorches, bankruptcy trustee for the estate of Frank Barnaba, as the plaintiff.
On December 1, 2009, the matter was tried before the court, Calmar, J. At the trial, Barnaba testified that there were no loan documents signed by the defendant and no agreement as to the terms of the loan, except that "the loan was to be repaid as funds became available." After the plaintiff rested its case, the defendant moved the court to direct a verdict in its favor on the grounds that there was no term for the payback of the loan, there were no loan documents and the board of directors never authorized the loan. The plaintiff responded that the defendant agreed to pay back the loan "when they had funds available," which established the term of the loan, and that the defendant's executive committee had the authority to approve the loan. The court asked the plaintiff if it had rested its case, and the plaintiff confirmed that it had. After the parties addressed outstanding discovery issues, the court again asked the plaintiff if it had rested its case, and the plaintiff again confirmed that it had.
On January 8, 2010, the court granted the defendant's motion for dismissal for failure to make out a prima facie case. Specifically, the court concluded that, construing the evidence in a light most favorable to the plaintiff, the parties agreed that the loan was to be repaid as funds became available, that this term was an essential element of the contract and that "the plaintiff rested its case without establishing . . . that the defendant had funds available to repay the loan."
Although the defendant moved for a directed verdict, the court noted in its decision that "[b]ecause this is a trial to the court, the motion should more properly be styled a motion for judgment of dismissal for failure to make out a prima facie case under Practice Book § 15-8."
CT Page 9250
DISCUSSION
Practice Book § 17-4(a) provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent." "It is familiar law that a court has the inherent authority to open, correct or modify its judgments." (Internal quotation marks omitted.) Marshall v. Marshall, 119 Conn.App. 120, 134-35, 988 A.2d 314 (2010). "Because of the important consideration of finality of judgments, however, a judgment should not be opened without a strong and compelling reason." Martin v. Martin, 99 Conn.App. 145, 156, 913 A.2d 451 (2007). "Negligence is no ground for vacating a judgment . . ." (Internal quotation marks omitted.) Berzins v. Berzins, 105 Conn.App. 648, 653, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008). Furthermore, "[i]n the context of an action to reopen and set aside a judgment . . . negligence includes the failure of a party to produce evidence which, prior to judgment, was within her power to produce." Izard v. Izard, Superior Court, judicial district of Hartford, Docket #FA 01 0727767 (January 29, 2004, Gruendel, J.) ( 36 Conn. L. Rptr. 483). "One of the essential requirements for the granting of [a motion to open judgment or a motion for a new trial] is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial." Corbin v. Corbin, 179 Conn. 622, 626, 427 A.2d 432 (1980).The plaintiff argues that the court should reconsider its judgment of dismissal in favor of the defendant on two grounds. First, the plaintiff argues that it had no notice that to establish its prima facie case it was required to offer proof that the defendant had the ability to pay back the loan. Second, the plaintiff argues that evidence of the defendant's ability to pay exists in the court record. Therefore, the plaintiff requests that, in light of the evidence of the defendant's ability to pay back the loan, the case be restored to the trial docket. In response, the defendant counters that the plaintiff rested its case without submitting sufficient evidence to establish its prima facie case and that the court should not reopen the case and allow the plaintiff to offer proof of the defendant's ability to pay back the loan.
Accordingly, the plaintiff's motion raises two issues: (1) whether the plaintiff, to establish its prima facie case, was required to prove that the defendant had funds available to back the loan: and (2) whether evidence of the defendant's ability to pay back the loan exists in the record.
I.
The plaintiff first argues that it did not have to produce evidence of the defendant's ability to pay back the loan in order to establish its prima facie case. Practice Book § 15-8 provides in relevant part: "If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case." "The standard for determining whether the plaintiff has made out a prima facie case, under [§ 15-8], is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it . . . For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8], it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Emphasis in original; internal quotation marks omitted.) Moss v. Foster, 96 Conn.App. 369, 378, 900 A.2d 548 (2006).
The essential elements for a cause of action based on breach of contract are (1) agreement formation, (2) performance by one party, (3) breach of the agreement by the other party, (4) direct and proximate cause, and (5) damages. McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). Thus, "[t]he plaintiff must prove that a contract existed, with all of its essential terms . . . If the plaintiff can establish that a valid contract existed, then the plaintiff must also prove that the defendant breached that contract." Main v. Roth, Superior Court, judicial district of New Britain, Docket No. CV 93 0458686 (May 16, 1995, Handy, J.).
Additionally, "[o]ur case law requires definite agreement on the essential terms of an enforceable [oral] agreement." (Internal quotation marks omitted.) 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 699, 802 A.2d 117 (2002). Furthermore, "[t]he identification of the essential elements of a contract depends on the particular circumstances of each case." (Internal quotation marks omitted.) Coalition to Save Horsebarn Hill v. FOIC, 73 Conn.App. 89, 98, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003). Moreover, "there is no bright line rule describing the essential elements of any and all enforceable contracts. Whether a term is essential turns on the particular circumstances of each case." (Internal quotation marks omitted.) 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, supra, 70 Conn.App. 701.
The plaintiff argues that it did not know that it had to introduce evidence of the defendant's ability to pay back the loan in order to establish its prima facie case. Specifically, the plaintiff argues that "[t]he [d]efendant never pleaded the additional requirement as a defense or raised it in any pleading or argument before the court" and that a judgment outside of the pleadings is void. Additionally, the plaintiff argues that it "had no notice of the additional evidentiary requirement (showing the [d]efendant's ability to pay)" because the defendant moved for a directed verdict on other grounds and the court, in granting the defendant's motion for dismissal, raised sua sponte the issue of the defendant's ability to pay back the loan. The defendant counters that "the plaintiff failed to establish a prima facie case and rested," and that it did not have to raise the issue of its ability to pay back the loan as a special defense.
Section 15-8 does not require that the moving party, as a prerequisite to moving the court for a judgment of dismissal, raise as a special defense the nonmoving party's failure to make out a prima facie case. On the contrary, "[a] motion for dismissal is not generally granted when based on a special defense . . ." John H. Kolb Sons, Inc. v. GL Excavating, Inc., 76 Conn.App. 599, 606, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003). Furthermore, § 15-8 does not require the moving party to specify its ground for moving for a judgment of dismissal. Instead, the only question the court considers in determining a judgment of dismissal is whether the plaintiff has produced sufficient evidence to establish its prima facie case. See, e.g., Hinchliffe v. American Motors Corp., 184 Conn. 607, 611, 440 A.2d 810 (1981) (judgment of dismissal proper, even if granted for wrong reason, if plaintiff failed to establish prima facie case); Lewis v. Scoville, 94 Conn. 79, 86, 108 A. 501 (1919) (motion for nonsuit need not specify particular reasons because only question is whether plaintiff failed to make out prima facie case).
To sustain its breach of contract claim, the plaintiff must first establish that a contract existed between it and the defendant. In order to do so, the plaintiff must establish the essential terms of its oral agreement with the defendant. In its amended complaint, the plaintiff alleged that it made loans totaling $96,355.26 to the defendant, that the defendant agreed to pay these loans back and that the defendant made two payments totaling $42,000 toward repayment of its debt to the plaintiff. The plaintiff's complaint did not specify the terms of these alleged loans. At the trial, the plaintiff provided the only evidence regarding the term of the agreement, testifying that "the loan was to be repaid as funds became available." In the particular circumstances of this case, that term is an essential term of the agreement. In order to prove that the defendant breached this term of the agreement, the plaintiff had to produce evidence that the defendant had funds available to pay back the loan. See Booth v. Booth Bayliss Commercial School, Inc., 120 Conn. 221, 229, 180 A. 278 (1935) (payment not due until creditor proves debtor's ability to pay).
II.
The plaintiff next argues that evidence of the defendant's ability to pay back the loan exists in the record. Specifically, the plaintiff points to the defendant's answers to the plaintiff's requests for admissions. "Pursuant to Practice Book . . . [§ 13-22], a party may serve on any other party a request for admission of the truth of any matter relevant to the disposition of the pending action. Generally, any matter admitted by the party to whom the request is made is conclusively established. Practice Book . . . [§ 13-24]." (Internal quotation marks omitted.) Baughman v. Collins, 56 Conn.App. 34, 39, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000); but see Westbrook v. ITT Hartford Group, Inc., 60 Conn.App. 767, 772 n. 11, 761 A.2d 242 (2000) (party's response to request for admission is binding as judicial admission, but judicial admissions not automatically conclusive). Nevertheless, "[t]o take advantage of admissions, the requests and the answers thereto should be introduced into evidence . . . Otherwise, there would be no opportunity to test their evidentiary competence." Larson v. Fazzino, 216 Conn. 431, 433 n. 4, 582 A.2d 179 (1990); see also Martins v. Connecticut Light Power Co., 35 Conn.App. 212, 227, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994) (admissions offered into evidence are subject to evidentiary principles, including hearsay rule).
The plaintiff argues that the defendant's answers to its requests for admissions "conclusively established" that the defendant had funds available to pay back the loans. The defendant counters that the plaintiff rested its case without admitting the requests for admissions into evidence or asking the court to take judicial notice of them. Furthermore, the defendant argues that, even if they had been admitted into evidence, they do not show that the defendant had the ability to pay back the loans.
Even if the court assumes the defendant's answers to the plaintiff's request for admissions would establish that the defendant had the ability to pay back the loans, the plaintiff never admitted them into evidence. "If a plaintiff fails to present all of the evidence to the trial court at the proper time, the plaintiff runs the risk that the trial court will dismiss the complaint. Practice Book § [15-8] allows the trial court to dismiss the case against a defendant whenever it determines that, after the plaintiff has produced his evidence and rested his cause, the plaintiff has presented insufficient evidence to establish a prima facie case against the defendant." (Internal quotation marks omitted.) Season-All Industries, Inc. v. R.J. Grosso, Inc., 213 Conn. 486, 493, 569 A.2d 32 (1990). Furthermore, the court gave the plaintiff opportunities to "unrest" its case and introduce more evidence, yet the plaintiff failed to do so. Accordingly, the plaintiff failed to admit all of the evidence necessary to establish its prima facie case.
Where "the pleadings place the burden of proving any matter in issue on the plaintiff, [he or she] must in the first instance, introduce all the evidence upon which [he or she] relies to establish [his or her] claim . . . A plaintiff cannot present other evidence or more compelling evidence to sustain [his or her] burden of proof after [he or she] has rested." (Citations omitted; internal quotation marks omitted.) Rosenfield v. Cymbala, 43 Conn.App. 83, 93, 681 A.2d 999 (1996).
CONCLUSION
For the foregoing reasons, the court denies the plaintiff's motion to open judgment.