Rogers Investment Co. v. F. W. Woolworth Co.

Supreme Court of Connecticut

Rogers Investment Co. v. F. W. Woolworth Co.

282 A.2d 882, 161 Conn. 6, 1971 Conn. LEXIS 531

CourtSupreme Court of Connecticut

DecidedMarch 24, 1971

StatusPublished

Cited by6 cases

This text of 282 A.2d 882 (Rogers Investment Co. v. F. W. Woolworth Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rogers Investment Co. v. F. W. Woolworth Co., 282 A.2d 882, 161 Conn. 6, 1971 Conn. LEXIS 531 (Colo. 1971).

Pincite

Opinion

Thim, J.

This case concerns an amount of money which the defendant claims is owed to it by the plaintiff under the provisions of a lease. The defendant F. W. Woolworth Company was the tenant in a building in New Britain. The plaintiff was the owner of that building, having purchased it from the previous owner in July, 1963. The defendant had been a tenant in that building since January 5, 1951. Under a provision of the lease, which admittedly binds both of these parties, if an eminent domain taking occurred prior to the termination of the lease, the landlord would reimburse the tenant for unamortized “improvements or alterations . . . on the demised premises.” On November 30, 1967, the premises were condemned. In the condemnation proceeding the plaintiff introduced evidence to the effect that the defendant claimed $63,244.56 under this provision in the lease. The award in the condemnation proceeding was released under a stipulation, with the disputed amount assigned to the defendant. That amount was, by agreement, held in escrow pending the outcome of negotiations between the parties. On the failure of the parties to reach an agreement concerning the $63,244.56, hereinafter referred to as the escrow fund, the plaintiff landlord instituted this action to recover the escrow fund.

The complaint recites that the defendant has not substantiated its claim as to the amount due under the lease, and that, therefore, the plaintiff has a right to the return of the escrow fund. The plaintiff claimed damages totaling $75,000. The holder of the escrow fund was a defendant to the original *8 complaint. As to him, however, the case was withdrawn. A substitute complaint was then filed, which is, in substance, identical to the original complaint.

In its answer, the defendant denied the material allegations of the plaintiff’s complaint, and claimed, by way of special defense, that it was entitled to the escrow fund. The defendant also filed a counterclaim alleging specific improvements and alterations which it had made, and claiming $63,000. The plaintiff then filed an answer to the counterclaim, and also a special defense which alleged that certain expenditures contained in the counterclaim were not covered by the lease provision and that others were already amortized. The defendant then filed a reply to the special defense of the plaintiff.

On the conclusion of the trial, the court found that the defendant had substantiated claims in the amount of $28,260.06, plus proportionate interest, and awarded that amount to the defendant, to be paid from the escrow fund. The plaintiff was awarded the remaining $34,984.50, plus its proportionate share of the interest on the fund. From the judgment rendered, the plaintiff appealed, requested a finding, and assigned as error: (1) Certain evidentiary rulings; (2) certain conclusions in the finding claimed not to be supported by the subordinate facts set forth in the finding. The defendant also assigned error, claiming: (1) That certain paragraphs of the finding were without any evidentiary foundation; (2) that certain conclusions were not supported by the subordinate facts as set forth in the finding; and (3) that the court refused to find certain material admitted or undisputed facts as set forth in the counterfinding.

In order to untangle the somewhat complicated claims in this case, we begin by noting the proofs *9 which were required of each party to this action. The plaintiff has alleged that the defendant has not substantiated its right to the escrow fund. The defendant has alleged that it can substantiate its claims to the fund. It, therefore, must substantiate them in order to recover. The defendant’s recovery will be only to the extent that it carries that burden. Under the circumstances, to the extent that the defendant fails to establish its claims the plaintiff may recover. On the record it is apparent that no damages in excess of the amount of the escrow fund plus accrued interest have been demonstrated by either party. Under no circumstance, therefore, may more than that amount be recovered.

All of the issues on this appeal relate to three of the defendant’s exhibits which were admitted by the trial court and objected to by the plaintiff. It is obvious that these exhibits were the basis of the finding of the trial court. Each of the exhibits bears the title: “Statement of Alteration Account.” Hereinafter they will be referred to as the exhibits. The defendant claims that they show the expenditures for which it is to be reimbursed. The plaintiff objected to their introduction on two grounds. First, they are not admissible business entries within the intent of General Statutes § 52-180, and second, they are speculative. The defendant claimed, and the trial court agreed, that they were admissible business entries and that they were not speculative. The defendant also claims, on appeal, that they were admissible because the plaintiff had relied on them in the condemnation proceeding and that, therefore, the plaintiff is judicially estopped from denying their validity as demonstrative of the amounts owing. We believe that these evidentiary issues are determinative of the basic issue of this appeal. *10 If the exhibits were admissible, and if they were not speculative, the defendant has carried its burden. If they were inadmissible or speculative then the defendant has demonstrated its inability to substantiate its claims and the plaintiff has borne its burden.

We turn first to the issue of judicial estoppel, for, apparently, if that principle applies, the exhibits would be admissible and not speculative even if the documents should otherwise be found not to be admissible business entries and to be speculative. The contention appears to be that, having used these documents to substantiate a debt owing to the defendant, the plaintiff may not now deny they are admissible and that they are proof of that debt.

The stipulation of the parties concerning the escrow fund was before the referee in the condemnation proceeding. The referee was made aware that a definite amount had not, at that time, been agreed on. Further, the stipulation itself was very clear on that point. It stated, in part: “[T]he amount of the claim of The F. W. Woolworth Company is in dispute and will require time to determine the interests of the parties . . . [the] escrow fund shall be deposited in a savings account bearing interest until such time as the figure is determined either by settlement or by a hearing before a referee.” It is obvious that where an amount is in dispute, a final compromise, if one is reached, will most likely be something less than the full amount claimed. It is also obvious that if a claim goes to a hearing there is a possibility that it will not be satisfactorily proven, and thus the claimant will get nothing. These points were certainly apparent to the referee in the condemnation proceeding. In fact, in his memorandum he noted that there was a stipulation *11 “calling for pro rata reimbursement of $63,000.” He did not say the fund was a debt owed by the plaintiff.

The actual difficulty with the defendant’s claim of judicial estoppel is that it would have us hold that the use of evidence to substantiate the fact that a claim is being made, and the amount of that claim, is tantamount to an admission that the claim is valid. Certainly that is not so.

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