Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford
Seven Oaks Enterprises, L.P. et al.
Sherri DeVito et al
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SET ASIDE THE VERDICT (#218)
Hon. Charles T. Lee, J.
Plaintiffs commenced this action for breach of contract and non-payment of a promissory note (the Note) on or about May 19, 2010. Plaintiffs allege, among other things, that they made a purchase money loan to defendants in the amount of $1, 325, 000, evidenced by the Note, in connection with the development of a speculative residential project on Round Hill Road in Greenwich, Connecticut. The case went to trial before a jury on January 23, 2015. On February 6, 2015, the jury returned a verdict $1, 325, 000 in favor of the plaintiffs, Seven Oaks Enterprises, L.P. (SOE) and Seven Oaks Management Corporation (SOM), and against the counterclaims of defendant Sherri DeVito (#214.00, #215.00).
On February 23, 2015, the defendant filed a motion to set aside the jury verdict (#218.00), with a memorandum in support attached, and then filed a supplemental memorandum in support on March 18, 2015 (#223.00). Plaintiffs filed an objection on April 17, 2015. Argument was heard on May 4, 2015.
A trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. Purzycki v. Fairfield, 244 Conn. 101, 106-07, 708 A.2d 937 (1998). The court must consider the evidence and all inferences drawn therefrom in a light most favorable to the successful party. Craine v. Trinity College, 259 Conn. 625, 635, 791 A.2d 518 (2002); Gaudio v. Griffin Health Services, 249 Conn. 523, 534, 733 A.2d 197 (1998). A motion to set aside should not be granted unless the jurors could not reasonably and legally reach the verdict they reached. Craine, supra, 259 Conn. 636. A court is empowered to set aside a jury verdict when it is contrary to law or unsupported by the evidence; however, recognizing that it may impinge on the parties' rights to a jury trial, the verdict should not be set aside where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. Carusillo v. Associated Women's Health Specialists, P.C., 72 Conn.App. 75, 83, 804 A.2d 960 (2002).
" [T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did . . . A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear . . . A verdict will be deemed intelligible if it clearly manifests the intent of the jury." (Citation omitted; internal quotation marks omitted.) Hall v. Bergman, 106 Conn.App. 660, 680, 943 A.2d 515 (2008), aff'd, 296 Conn. 169, 994 A.2d 666 (2010). Overall, " [a] party challenging the validity of the jury's verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden . . . [I]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." (Citation omitted; internal quotation marks omitted.) Broadnax v. New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009).
The defendant originally listed nine grounds in her motion to set aside the verdict, but has briefed only four in her supplemental memorandum of law. Accordingly, the court addresses those four grounds. See Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444 n.40, 35 A.3d 188 (2012) (claims that are not mentioned or not briefed beyond a bare assertion, or that consist of conclusory assertions with no mention of relevant authority, are inadequately briefed). The defendant argues that (I) the plaintiffs failed to present sufficient evidence that either entity had the right to enforce the promissory note, especially because they could not produce the original; (II) plaintiffs lack the capacity to maintain the action; (III) plaintiffs' principal, Mr. Chodos, violated the court's order by mentioning the incarceration of Ms. DeVito's husband in the hearing of the jury; and (IV) the pleadings had not been properly closed.
As more fully set forth below, the court finds that there was sufficient evidence introduced at trial to allow the jury to find that plaintiffs were entitled to enforce the note, that plaintiffs had capacity or standing to bring the action, that the remark by Mr. Chodos was not so prejudicial as to justify a new trial; and the court finds that defendants had adequate opportunity to address the pleadings and any discovery issues. Accordingly, defendant's motion to set aside the verdict is denied.
I. Sufficient Evidence was Introduced to Support the Finding that Plaintiffs were Entitled to Enforce the Note.
Defendant claims that because plaintiffs could not produce the original Note, they were not entitled to enforce it against defendant. More specifically, defendant claims that there was insufficient evidence to allow the jury to conclude that (a) plaintiff SOE was a holder in possession of the Note when it was lost; (2) SOE is a non-holder in possession of the Note with the rights of a holder under General Statutes § 42a-3-309, which relates to rights conferred by a negotiable instrument which is lost; or (3) SOM is a party which is entitled to enforce the Note.
The court disagrees with these contentions. Mr. Chodos testified that he or his lawyer had possession of the original of the Note. The court allowed a photocopy of the Note to be introduced provisionally, to be replaced with the original Note should the plaintiffs' principal find it. Mr. Chodos testified that he conducted a diligent search for the Note in all locations where it would likely be, but was nevertheless unable to locate the original. Our Appellate Court " has held on previous occasions that the production of a photocopy of a note, rather than the original, may suffice to establish a plaintiff's status as a holder in due course." Cadle Co. v. Errato, 71 Conn.App. 447, 459, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). Gen. Stat. Section 42a-3-309(a), entitled " Enforcement of lost, destroyed or stolen instrument" provides: " A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process."
If other evidence is produced that sufficiently shows that a plaintiff satisfies the criteria of Section 42a-3-309(a), then the jury may infer possession and the right to enforce the note. Cadle Co. v. Errato, supra, 71 Conn.App. 458. Moreover, " [t]he special problems and burdens of proof imposed on a plaintiff seeking to enforce lost instruments strongly suggest that the debt, including the circumstances under which the documents were lost and the attempts to find them, should be proven by testimony . . ." (Internal quotation marks omitted.) Silicon Valley Bank v. Miracle Faith World Outreach, Inc., 140 Conn.App. 827, 834, 60 A.3d 343, cert. denied, 308 Conn. 930, 64 A.3d 119 (2013).
The defendant did not object to the photocopy of the Note, nor argue that the terms of the photocopy of the Note had been altered or object to testimony as to the terms of the Note. The plaintiff submitted agreements related to the Note, the jury heard the lengthy testimony of the plaintiffs' principal detailing the various locations where he searched for the original Note, and others testified that SOE possessed the original Note. The court then instructed the jury, using the statutory language of § § 42a-3-301 and 42a-3-309 for determining whether a party has the right to enforce a note despite the absence of the original, and the jury unanimously found that SOE was in possession of the Note and entitled to enforce it when it lost possession, after answering in the affirmative several interrogatories based on the language of 42a-3-309.
Based upon the copy of the Note coupled with other evidence presented, as well as the jury's ability to determine witnesses' credibility, a reasonable jury could have reached the conclusion that SOE was in possession of the Note when it was lost, the loss of possession was not the result of a transfer by the person or a lawful seizure, and the whereabouts of the Note are unknown, making SOE a " person not in possession of the instrument who is entitled to enforce the instrument pursuant to section ...