LLC v. Edgar Ortiz (2013)

MEMORANDUM OF DECISION

This is a civil case wherein the plaintiff has brought suit against the defendant alleging that the defendant is liable for damages based on a promissory note which is held by the plaintiff.   The defendant denies all of the allegations of the complaint.

The case was heard by this court as a contested court case on March 15, 2013.   Both parties appeared by counsel.

The plaintiff has offered various requests for discovery and the defendant's responses thereto which he claims proves that the defendant is liable on the promissory note.   In addition he has offered an affidavit of debt and a promissory note in an effort to prove damages.   He claims that both of these documents are admissible to prove damages without a witness to testify that the documents satisfy the requirements of the business records statute (Connecticut General Statutes Section 52–180).   The defendant objects to the offers of the affidavit and the note, claiming that a witness is needed.   The court agrees with the defendant.

It is not necessary for the court to determine whether the discovery records in evidence establish liability on the defendant.   The evidence objected to is necessary to prove damages.   If the plaintiff has failed to prove damages then he cannot prevail in this case.

“Our review of the trial court's ruling excluding the field notes “is limited to the specific legal ground raised in the objection.”  State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985);  see Practice Book §§ 4185, 288.   The statement in the notes that is attributed to Kumnick would have been inadmissible as hearsay, because it was “[a]n out-of-court statement ․ offered to establish the trust of the matters contained therein”;  State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985);  unless it came within the exception for business records.  “To gain admission of a document under the business record exception to the hearsay rule, the proponent must show that (1) the document was made in the regular course of business, (2) it was the regular course of business to make such a record, and (3) the record was made when the act, transaction or event occurred, or shortly thereafter.”  State v. Damon, 214 Conn. 146, 156–57, 570 A.2d 700, cert. denied, 490 U.S. 1069, 111 S.Ct. 65, 112 L.Ed.2d 40 (1990).   To qualify a record as a business entry, the party offering the evidence must present a witness who testifies that the three requirements have been met.  Id. The defendant made no attempt to lay a proper foundation for the admission of the notes, even after the trial court pointed out this requirement.   We conclude, therefore, that the trial court correctly excluded the field notes from evidence.”  State v. Tillman, 220 Conn. 487 (1991).

The court notes that in both cases cited by the plaintiff in its brief a witness offered evidence that the document in question was “made in the regular course of the 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.”   The court then decided whether the document objected to satisfies the business records statute.

The objections to both offers are sustained.   A judgment may enter in favor of the defendant.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.