Doreen Scungio, Executrix v. Jose Fernandez et al. (2014)

MEMORANDUM

This court sat as the judge in a bench trial in the case of Doreen Scungio, Exec. v. Jose Fernandez et al., NNH–CV–08–5023787, Superior Court, Judicial District of New Haven.   The court entered judgment in favor of the plaintiff on January 30, 2012.   The decision was based in substantial part on the court's evaluation of the credibility of the plaintiff Peter Minore, and the credibility of defendant Jose Fernandez.   The case involved a claim by the plaintiff that he had loaned Edwardo Perez, Fernandez, and Fernandez's wife Myriam, the sums of $42,000 and $22,000 as evidenced by two promissory notes, and that the loans had not been paid.   The loans were alleged to have been made to Mr. Fernandez and Mr. Perez in connection with extensive renovations of a liquor store owned by them on Orange Avenue in West Haven.   The defendants Perez and Fernandez claimed that they had paid the plaintiff interest due on the notes and also $61,500.00 in cash payments on the principal.   The plaintiff disputed that he had received any cash payments on the principal.   Mr. Minore died after he had testified and before the court entered judgment.   His daughter Ms. Scungio, Executrix of his estate, was substituted as the plaintiff before the court entered judgment.

In the case at bar the plaintiff Peter Minore brought suit on two promissory notes.   He died shortly thereafter and his daughter as Executrix has been substituted as plaintiff.   The first note reflects a loan of $70,000 to Mayiembe, LLC which was guaranteed by Jose Fernandez and his wife, Myriam Fernandez.   The second note is for $10,000 and was issued by Jose Fernandez to Peter Minore.   The two loans were made to help finance the operation of a convenience store operated by Mr. Fernandez.   The plaintiff claims that only some interest was paid on the $70,000 note and that no principal payments were made on either note.   Jose Fernandez claims that he paid all of the interest due on the $70,000 note, all of the principal of $70,000, and $500 on the $10,000 note.   The sum of $70,500 was allegedly paid in cash with no receipts for payment being given by Mr. Minore.   The defendant Mayimbe, LLC has been defaulted for failure to appear.   The defendant Myriam Fernandez has filed a cross complaint against her former husband, Jose Fernandez, seeking reimbursement for any judgment which may be rendered against her.   The defendant Jose Fernandez has agreed that such a judgment may enter against him for any judgment that is rendered against Myriam based on her guarantee.

The principal issue for this court to determine is the credibility of Peter Minore, as testified to by his daughter Ms. Scungio, and the credibility of Jose Fernandez in deciding whether the cash payments of $70,500.00 claimed by Jose Fernandez were in fact paid.

In the case previously decided by the judgment entered on January 30, 2012 the court accepted the claims of the plaintiff and did not believe the evidence offered by Jose Fernandez and other defense witnesses that $61,500 had been paid to Mr. Minore in cash with no receipts being given.

The case previously decided and the case at bar both involve the same plaintiff and the same principal defendant, similar cash loans, a similar claim of payment by the defendant Fernandez, a similar claim of non-payment by the plaintiff, and similar documentary exhibits.

The court finds that the similarity of the issues involved in the prior case decided by the court, and the issues involved in the case at bar, may cause the court to allow the prior findings and conclusions to affect the decision to be rendered in the case at bar.

The court therefore declares a mistrial in the case at bar.

William L. Hadden, Jr.

Judge Trial Referee

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