source: Caselaw Access Project

author: PETERS, J. MCDONALD, J.,

license: Public Domain

text:
    NEW ENGLAND SAVINGS BANK v. BEDFORD REALTY CORPORATION ET AL.
    (SC 15828)
    Callahan, C. J., and Norcott, Katz, McDonald and Peters, Js.
    Argued May 1
    officially released September 1, 1998

      David S. Hoopes, for the appellant (substitute plaintiff Alaska Seaboard Partners Limited Partnership).

      J. Michael Sulzbach, for the appellee (named defendant).
   Opinion

PETERS, J.

The principal issue in this appeal is whether, pursuant to General Statutes § 52-180, business records are admissible to prove the amount of a debt, if the witness introducing the records lacks personal knowledge of their provenance. We conclude that such records are admissible, and, therefore, we reverse the judgment of the trial court.

This case arises out of a foreclosure action originally commenced by New England Savings Bank (New England) against the original mortgagor, Stelle M. Mahler. In 1986, Mahler executed a note to New England, secured by a mortgage on her home in Madison. Mahler subsequently conveyed the property to Bedford Realty Corporation (Bedford), the defendant in this action. New England filed this foreclosure action in 1992. Subsequently, New England became insolvent, and the Federal Deposit Insurance Corporation (FDIC) became the receiver of its assets. The FDIC assigned New England’s interest in the mortgage to Citizens Savings Bank (Citizens), which, in turn, assigned the mortgage interest to GHR D.C., Inc. (GHR). Citizens and GHR were each substituted, in turn, as plaintiffs in this foreclosure action.

After a trial to the court, Silbert, J., a judgment of strict foreclosure was rendered. On appeal, this court reversed that judgment and remanded the case for a new trial. New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301 (1996). GHR then assigned its interest in the mortgage to Alaska Seaboard Partners Limited Partnership (Alaska), the substituted plaintiff in this appeal (plaintiff).

On remand, the action was tried to the court, DiPentima, J. One of the principal issues at the hearing was the amount of the indebtedness. In order to establish the amount of the debt, the plaintiff submitted three documents through two witnesses.

The plaintiff first called John Smith, the former director of operations of New England, the original mortgagee. Through Smith, the plaintiff sought to introduce: (1) a payoff statement showing the amount of the debt on April 22,1993 (exhibit 14A); and (2) a copy of a 1991 annual loan statement sent to the borrower (exhibit 12). The trial court admitted these documents as full exhibits, subject to the condition that the plaintiff prove “where [it] got the document^]” or “where [they] came from physically.”

The plaintiff then introduced, through Russell Bartlett, an account officer at Security National Servicing Corporation, an entity that is managing the loan for the plaintiff, a document containing a set of written calculations that Bartlett had prepared from the plaintiffs business records. These calculations demonstrated that, as of the date of trial, the defendant owed $359,008.69 on the loan principal and $159,190.50 in interest. The court admitted the document, except for the negative escrow calculation, as a full exhibit, exhibit 16.

At the end of the plaintiffs case-in-chief, the defendant moved for dismissal pursuant to Practice Book § 15-8, formerly § 302, on the ground that the plaintiff had not made a prima facie showing regarding the amount of the debt. The trial court granted the defendant’s motion. The court reasoned that the plaintiff had failed to qualify its exhibits 12 and 14a as business records under § 52-180, because, Smith, the witness introducing those records, lacked knowledge of how the records had gotten to the courthouse.

The plaintiff moved to open the judgment, and the trial court denied its motion. The plaintiff filed a motion to reargue and for reconsideration, which the trial court also denied. The plaintiff appealed from the judgment to the Appellate Court, and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1, formerly § 4023.

On appeal to this court, the plaintiff raises three issues. It argues that the trial court improperly: (1) excluded the plaintiffs exhibits 12 and 14a; (2) determined that the plaintiffs exhibit 16 was insufficient to establish a prima facie case regarding the amount of principal and interest presently due on the mortgage debt; and (3) declined to render judgment for the plaintiff based on the principal and interest amounts set out in the plaintiffs exhibit 16. The defendant counters this last claim by arguing that the plaintiff failed to make a prima facie case in other respects. We reverse the trial court’s judgment and remand the case for a new trial.

I

We first address the evidentiary issue regarding the standard for admission of business records that was raised by the trial court’s exclusion of exhibits 12 and 14a. The plaintiff argues that the trial court improperly excluded these exhibits. We agree.

The trial court concluded that the exhibits were inadmissible because the plaintiff had failed to: (1) establish the required foundation for admission of a business record under § 52-180; and (2) authenticate the documents. In its memorandum of decision, the trial court reasoned that because Smith, the New England director of operations, had no personal knowledge of when these documents had been created, he could not testify that they had been generated in the regular course of business within the meaning of § 52-180. The trial court also concluded: “Smith testified that [ejxhibits 12 and 14a are documents that appear to be those once kept by [New England] in the regular course of its business. Nevertheless, the plaintiff has not established how or whether its counsel came to possess the proffered exhibits from [New England].”

The trial court’s conclusions raise two distinct doctrinal issues. We must determine whether the documents were: (1) admissible under the business records exception to the general prohibition on hearsay; and (2) authenticated sufficiently to demonstrate the minimal indicia of reliability necessary to render them admissible.

A

We consider first whether the plaintiff established a sufficient foundation to render exhibits 12 and 14a admissible under the hearsay exception contained in § 52-180. To assess the applicability of this statute, we need to review briefly its common-law antecedents. The history of the business records exception starts from the recognition that this exception to the general prohibition on hearsay originated at common law and was thereafter incorporated into statute, first in England and later in this country. 5 J. Wigmore, Evidence (4th Ed. 1974) § 1517, pp. 426-39. The initial rationale for the exception was that, although hearsay, business records were trustworthy because their creators had relied on the records for business purposes. Id., § 1522, pp. 442-43.

The need for the exception became more pressing as the American economy became industrialized and produced more complex litigation. In 1927, Judge Learned Hand wrote: “The routine of modem affairs, mercantile, financial and industrial, is conducted with so extreme a division of labor that the transactions cannot be proved at first hand without the concurrence of persons, each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event. Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents. Unless they can be used in court without the task of calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business.” Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co., 18 F.2d 934, 937 (2d Cir. 1927).

With these principles in mind, we turn to the requirements for the admission of business records under § 52-180. As a matter of statutory construction, “[t]here is no more elementary rule of statutory construction than that the intention which the legislature has expressed must govern. . . . [Legislative intent is to be determined by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was intended to implement, and the statute’s relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 242 Conn. 689, 695, 699 A.2d 1003 (1997).

We begin with the language of the statute. On its face, the statute expands the mies for admission of business records. Section 52-180 (b) provides that a record “shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.”

There is little legislative history, in large part because Connecticut adopted a statutory business records exception long before the advent of comprehensive published legislative history in 1953. As early as 1715, however, Connecticut enacted a statute making book entries admissible for actions for book debt. Predecessors of the modem § 52-180 were incorporated into the statutory revisions of 1902, 1918, 1930 and 1949.

Early Connecticut case law enunciated mies favoring the admissibility of business records. See generally 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 89, pp. 793-94. In 1818, Chief Judge Zephaniah Swift concluded that a shop book was admissible to prove the amount of indebtedness. De Forest v. Bacon, 2 Conn. 633, 638 (1818); see Clark v. Savage, 20 Conn. 258, 260-61 (1850). Such entries were admissible in proceedings involving parties other than the original debtor and creditor. Bridgewater v. Roxbury, 54 Conn. 213, 218-19, 6 A. 415 (1886). Although a witness was required to identify the books, he or she was not permitted to testify regarding their contents. Treat v. Barber, 7 Conn. 274, 278 (1828).

More recent Connecticut case law has articulated similarly modest requirements for the admission of business records under § 52-180. See generally C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.14.3, pp. 386-87. “The court must determine, before concluding that [the document] is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” (Internal quotation marks omitted.) Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991). The proponent need not prove the accuracy of the record; its weight is an issue for the trier of fact. State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

We have stated that § 52-180 “should be liberally interpreted” in favor of admissibility. Bell Food Services, Inc. v. Sherbacow, supra, 217 Conn. 485; see Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388, 461 A.2d 422 (1983). The witness introducing the document need not have made the entry himself or herself, nor have been employed by the organization during the relevant time period. Baumert-Moran Sales Co. v. Red Bird Truck Rental Corp., 149 Conn. 42, 45, 175 A.2d 189 (1961). In addition, “[t]here is no requirement in § 52-180 . . . that the documents must be prepared by the organization itself to be admissible as that organization’s business records.” Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475, 531 A.2d 177 (1987).

In this case, the witness introducing the disputed exhibits had been the director of operations of New England for the seven years preceding the closure of the bank, and had set up the procedures to create and format such documents. He testified that the proffered documents appeared to be records generated by New England in the regular course of its business. He also stated that it was the practice at New England to record charges and interest at or near the time they accrued. We conclude that this testimony sufficed to meet the plaintiffs burden to establish a sufficient foundation to render exhibits 12 and 14a admissible as business records under § 52-180.

B

Having concluded that exhibits 12 and 14a were admissible under § 52-180, we next must determine whether they were properly authenticated. The question is whether a business record may be admitted even though the qualifying witness lacks personal knowledge of its provenance. We conclude that a proponent need not establish a chain of custody in order to authenticate a business record.

“ ‘Authentication’ is ... a necessary preliminary to the introduction of most writings in evidence . . . .” 2 C. McCormick, Evidence (4th Ed. 1992) § 218, p. 36. A proponent may authenticate a document by demonstrating “proof of authorship of, or other connection with, [such] writings.” Id. In general, a writing may be authenticated by a number of methods, including direct testimony, circumstantial evidence or proof of custody. Id., §§ 219 through 228, pp. 38-58.

The requirements for authenticating a business record are identical to those for laying a foundation for its admissibility under the hearsay exception. “It is generally held that business records may be authenticated by the testimony of one familiar with the books of the concern, such as a custodian or supervisor, who has not made the record or seen it made, that the offered writing is actually part of the records of the business.” Id., § 219, p. 39; see Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980) (“[a]ny person in a position to attest to the authenticity of certain records is competent to lay the foundation for the admissibility of the records; he [or she] need not have been the preparer of the record, nor must he personally attest to the accuracy of the information contained in the records”); Rice v. United States, 411 F.2d 485, 488 (8th Cir. 1969) (declining to require testimony of authenticating witness with personal knowledge of creation of record because Federal Business Records Act “ ‘was intended to eliminate the technical requirement of proving the authenticity of records and memoranda by the testimony of the maker’ ”).

Other jurisdictions explicitly have rejected the notion that a proponent must prove a chain of custody in order to authenticate a business record. The Court of Appeals of New Mexico has held that questions about the accuracy of a document “stemming from a gap in the chain of custody or from possible incorrect entries affect the weight, not the admissibility,” of the document. Central Security & Alarm Co. v. Mehler, 121 N.M. 840, 918 P.2d 1340, 1350 (App. 1996). Likewise, the United States District Court for the Northern District of Indiana has stated that, “[t]he business records exception to the hearsay rule found in Federal Rule of Evidence 803 (6) does not require a showing of chain of custody. ” Pieters v. B-Right Trucking, Inc., 669 F. Sup. 1463, 1465 (N.D. Ind. 1987); see United States v. Bermea, 30 F.3d 1539, 1574 (5th Cir. 1994), cert. denied sub nom. Rodriguez v. United States, 513 U.S. 1138, 115 S. Ct. 1113, 130 L. Ed. 2d 1077, cert. denied sub nom. Garza v. United States, 514 U.S. 1097, 115 S. Ct. 1825, 131 L. Ed. 2d 746 (1995) (“any break in the chain of custody goes to the weight of the evidence rather than its admissibility”).

There are persuasive policy reasons for us to adopt such a rule. As the trial court aptly noted in a prior evidentiary ruling below: “[T]his case presents a common difficulty of our present day foreclosure actions. Many banks have gone into receivership and mortgages frequently have been assigned again and again. The original employees handling the loan are not always available or willing to testily.” As we have concluded above, the director of operations of New England was qualified to testily that the documents introduced were records produced in the regular course of business at the bank. To require testimony regarding the chain of custody of such documents, from the time of their creation to their introduction at trial, would create a nearly insurmountable hurdle for successor creditors attempting to collect loans originated by failed institutions.

We conclude that exhibits 12 and 14a were admissible as business records and were properly authenticated. Accordingly, we reverse the judgment of the trial court because of its contrary ruling concerning this evidentiary issue.

II

We next address whether the trial court improperly determined that the plaintiffs exhibit 16 was insufficient to establish a prima facie case regarding the amount of principal and interest presently due on the mortgage debt. We must determine whether: (1) exhibit 16 was admissible as a business record; and (2) the plaintiff introduced sufficient evidence to constitute prima facie evidence of the amount of indebtedness.

A

The threshold question is whether exhibit 16 was admissible. Exhibit 16 consisted of a calculation of the amount of indebtedness at the time of trial, including interest, late charges and negative escrow. Bartlett, the account manager acting on behalf of the plaintiff, testified that he had made these calculations using the principal balance from exhibit 14a as his starting point. The trial court admitted exhibit 16, except for the negative escrow calculation, as a full exhibit.

In its motion to reargue and for reconsideration, the plaintiff claimed that the amount of principal and interest due on the debt was established by exhibit 16, even without exhibits 12 and 14a. The trial court concluded in its ruling on the motion that it had admitted exhibit 16 upon the conditional admission of exhibit 14a. Because it had subsequently excluded exhibit 14a, the court reasoned, exhibit 16 was rendered inadmissible.

The problem of proving a debt that has been assigned several times is of great importance to mortgage lenders and financial institutions. At trial, Bartlett testified that failed institutions often sell notes and mortgages in bulk, and that investors in the secondary market acquire these assets and begin a collection process. Such investors typically receive the note and mortgage, as well as a file from the failed institution indicating the current account balance. These records become the basis for monitoring further account activity.

If we had not decided in part I of this opinion that exhibit 14a was admissible, we would be required to determine whether a record created by a subsequent holder of a note, based on an initial figure from a failed bank’s account books not in evidence, could be admitted as a business record of the second entity. In this appeal, our task is simplified, however, because the plaintiff introduced not only the calculations prepared by the witness on the basis of New England records (exhibit 16), but also the New England records containing the starting figure (exhibits 12 and 14a). We conclude that, consistent with the logic of the trial court’s memorandum of decision, linking the question of its admissibility to the admissibility of exhibit 14a, exhibit 16 was admissible.

B

We next consider whether exhibit 16, viewed in conjunction with exhibit 14a, constituted prima facie evidence of the amount of indebtedness. We conclude that the plaintiff submitted sufficient evidence to constitute a prima facie case concerning the amount of the debt.

A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact. 9 J. Wigmore, supra, § 2494, p. 379. 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.” (Emphasis in original; internal quotation marks omitted.) Berchtold v. Maggi, 191 Conn. 266, 270, 464 A.2d 1 (1983); see C. Tait & J. LaPlante, supra, § 4.3, p. 72. In evaluating a motion to dismiss, “[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 plaintiffs] favor.” (Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982).

In this case, exhibits 14a and 16, viewed together, presented evidence that, if credited, was sufficient to establish the amount of indebtedness at the time of trial and to meet the plaintiffs initial burden of proof. Accordingly, we reverse the trial court’s ruling with respect to this issue.

Ill

We consider, finally, whether the trial court improperly declined to render judgment for the plaintiff. We remand the case for a new trial. In order to provide guidance to the trial court, however, we address the defendant’s claim regarding the sufficiency of the plaintiffs prima facie case with respect to the issue of notice.

A

In its memorandum of decision, the trial court concluded that the plaintiff had failed to present a prima facie case regarding default and the amount of the debt. Although the trial court mentioned the existence of other issues, such as valuation, it did not make further factual findings.

The plaintiff now claims that the trial court improperly declined to render judgment regarding the amount of the debt. Although we have determined that the plaintiff carried its burden of making a prima facie case regarding the amount of the debt, the trial court still must determine whether, with respect to all of the elements of the plaintiffs prima facie case, the plaintiff carried its ultimate burden of persuasion. It is not our role as an appellate court to make factual findings to determine whether the plaintiff has carried this burden. See C. Tait & J. LaPlante, supra, § 3.1., p. 36. Moreover, the trial court still must make numerous other factual determinations, including, but not limited to, a finding of valuation. Accordingly, we remand this case for a new trial on these remaining issues.

B

In order to provide guidance to the trial court on remand, however, we address briefly the defendant’s claim that, even if the plaintiff proved the amount of the debt outstanding, it failed to present a sufficient prima facie case because it failed to introduce any evidence of notice of acceleration. The defendant argues that, pursuant to the terms of the acceleration clause of the mortgage instrument, such notice was a condition precedent to foreclosure and, therefore, a necessary element of the plaintiffs prima facie case.

The plaintiff disagrees. It counters that: (1) notice of acceleration was not an absolute condition precedent to seeking the remedy of foreclosure; and (2) it gave sufficient notice of acceleration in its motion for relief from automatic stay filed in the United States Bankruptcy Court.

“[A] foreclosure complaint must contain certain allegations regarding the nature of the interest being foreclosed. These should include allegations relating to the parties and terms of the operative instruments, the nature of the default giving rise to the right to foreclosure, the amount currently due and owing, the name of the record owner and of the party in possession, and appropriate prayers for relief.” D. Caron, Connecticut Foreclosures: An Attorney’s Manual of Practice and Procedure (3d Ed. 1997) § 4.09, p. 106.

The terms of the mortgage determine the necessary elements of the plaintiffs prima facie case. The adjustable rate rider provides in relevant part: “B. Transfer of the Property or a Beneficial Interest in Borrower. Uniform Covenant 17 of the Security Instrument is amended to read as follows If all or any part of the Property or any interest in it is sold or transferred . . . without Lender’s prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument . . . (Emphasis added.) Covenant 17 further provides: “If Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower.”

In order to determine the notice required by covenant 17, it is instructive to read its language jointly with other provisions in the mortgage. It is especially illuminating to compare the language of covenant 17 with that of covenant 19, which by its terms does not apply to unauthorized transfer cases.

Covenant 17 provides that, upon unauthorized transfer, the bank may accelerate immediately, provided that the borrower has thirty days, after acceleration, to pay the debt before facing mortgagee remedies such as foreclosure. Covenant 17 provides that the bank may “require immediate payment in full”; (emphasis added); if the property is sold or transferred without the bank’s approval. It provides that the lender must give the borrower “notice of acceleration,” which shall provide “aperiod of not less than 30 days from the date the notice is delivered or mailed”; (emphasis added); in which the borrower may pay. If the borrower fails to pay all sums due within those thirty days, the “[l]ender may invoke any remedies permitted by this Security Instrument.” (Emphasis added.)

By contrast, covenant 19 provides that a detailed notice must be sent before acceleration, setting a specific date thirty days later, by which a borrower must pay in order to avoid acceleration. Covenant 19 provides that, in the event that a borrower breaches a covenant of the security instrument other than covenants 13 and 17, the lender shall give notice to the borrower “prior to acceleration . . . .” (Emphasis added.) This notice must specify the default, the action required to remedy the default and a date, not less than thirty days from the date the notice is given to the borrower. It also must state that “failure to cure the default on or before the date specified in the notice may result in acceleration . . . .” (Emphasis added.)

At trial, in light of covenant 17, the plaintiff stated that exhibits 7 and 8 formed the basis for its prima facie case with respect to the notice of acceleration. Exhibit 7 was the plaintiffs motion for relief from automatic stay, filed in the United States Bankruptcy Court, requesting permission to foreclose on the property. Exhibit 8 was the transcript of the proceedings on that motion in the Bankruptcy Court.

The plaintiffs motion for relief from automatic stay alleged: “The debtor has failed to pay the installments required pursuant to the terms of the Note and the Mortgage to be paid on October 1, 1991, and each and every month thereafter and is in default pursuant to the terms of the Note and the Mortgage. ... On October 10, 1990, the debtor conveyed the Mortgaged Property to [Bedford] without the consent of the Bank. Consequently, the Bank has elected to require payment in full of all sums owing pursuant to the terms of the Note and the Mortgage and the Bank hereby gives the Debtor notice of acceleration of this indebtedness.” In other words, the plaintiff proceeded on the theory of acceleration provided in covenant 17 in the event of an unauthorized transfer.

In light of the applicable notice requirements of covenant 17, we conclude that the plaintiffs motion for relief from automatic stay was sufficient notice of acceleration, provided that it was mailed or delivered at least thirty days before a judgment of foreclosure entered. The plaintiff filed its motion for relief from automatic stay on or about April 20, 1992. A judgment of strict foreclosure was rendered by the court, Silbert, J., on January 20, 1995, after the first trial in this case. Therefore, the plaintiff gave notice of acceleration in compliance with the thirty day period required by covenant 17.

The judgment is reversed and the case is remanded for a new trial.

In this opinion CALLAHAN, C. J., and NORCOTT and KATZ, Js., concurred.

MCDONALD, J.,

dissenting. The majority concludes that the trial court improperly excluded two documents. One document purported to be a copy of the New England Savings Bank’s 1991 year-end statement to a mortgagor and the other purported to be a payoff statement addressed to that now defunct bank’s collection department and dated April 22, 1993.

A witness, John Smith, testified that the documents appeared to be those once produced by the bank. However, another witness, Sandra Reid, who supervised the bank’s collection department in 1993, testified that she could not recall ever seeing the payoff statement. Reid had prepared an affidavit of debt and testified on behalf of the bank in this case in May, 1993, and November, 1996.

The plaintiffs counsel, Charles Houlihan, who possessed the documents, testified that the payoff statement had been given to him before the trial by Stephen Bums, an agent of the bank’s successor, Alaska Seaboard Partners Limited Partnership.

The trial judge had repeatedly advised counsel that she required evidence of the source of the documents. Burns, nevertheless, was not produced, being in St. Louis on other business. Bums’ assistant, Russell Bartlett, was called to testify, and did not offer any information about their source. The trial judge, who had heard this case from November, 1996, until May, 1997, through continued hearings, stated that the absence of Bums made her decision more difficult. The trial judge subsequently refused to admit the documents.

The majority states that the records are authenticated where there is testimony that “the offered writing is actually part of the records of the business.” I agree with this quotation from Professor McCormick. There is, or should be, a large difference between what appears to be and what actually is a business record. In this case, the original note was lost, the witness who supervised the collection department and testified in 1993 did not authenticate the documents and the history of the documents was a mystery. In these circumstances, I believe that the trial judge was correct to require the proponent to show what appears to be records to be the actual records by tracing them, in some manner, back to the bank. The trial court’s subsequent rulings based on the rejection of the documents were therefore correct. I would affirm the trial court.

Accordingly, I respectfully dissent.

       General Statutes § 52-180 provides in relevant part: “Admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any 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.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .”

       Mahler was not a defendant in this action. Any interest claimed by the defendant Antonio Vanacore, doing business as Avon Tobacco and Candy, is not at issue in this appeal. For the purposes of this appeal, we refer to Bedford as the defendant.

       The parties agree that the promissory note has been lost. In New England Savings Bank v. Bedford Realty Corp., supra, 238 Conn. 759-60, however, this court determined that, because this is an equitable foreclosure action on the mortgage, not a legal action on the note itself, the plaintiff is free to produce other reliable evidence to prove the amount of the debt. “A bill or note is not a debt; it is only primary evidence of a debt; and where this is lost, impaired or destroyed bona fide, it may be supplied by secondary evidence.” (Internal quotation marks omitted.) Id., 760

       The FDIC took over New England in May, 1993.

       Practice Book § 15-8, formerly § 302, provides: “Dismissal in Court Cases for Failure to Make Out a Prima Facie Case
      “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       General Statutes § 51-199 (c) provides in relevant part: “The Supreme Court may transfer to itself a cause in the Appellate Court. . . .”

       Although the Appellate Court has held that, “[t]he trial court has discretion to determine whether the [business records exception] statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion”; Berkeley Federal Bank & Trust, FSB v. Ogalin, 48 Conn. App. 205, 208, 708 A.2d 620, cert. denied, 244 Conn. 933, 711 A.2d 726 (1998); plenary review is more appropriate for the question of law raised in this appeal. Justice McDonald’s dissent characterizes the issue on appeal as whether the trial court abused its discretion in excluding the proffered documents on the ground that the plaintiff allegedly failed to establish a sufficient chain of custody to authenticate them. In fact, the crux of the issue on appeal is a question of law: whether establishing such a chain of custody is a predicate for admitting documents as business records under § 52-180. Because we review the trial court’s interpretation of the statute, and the statute’s applicability to the proffered documents, our review is plenary. See Practice Book § 60-5, formerly § 4061; see also Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995) (“[w]hen . . . the trial court draws conclusions of law, our review is plenary”).

       See footnote 1 of this opinion for the text of § 52-180.

       We consider only whether these documents were admissible under § 52-180. We do not decide whether these exhibits should have been excluded on other grounds.

       The defendant argues that exhibit 16, at best, established the amount of principal due on September 1, 1991, and the interest and late charges that would have accrued if there had been no further payments. We disagree. Payment is an affirmative defense that must be proved by the defendant. See Apuzzo v. Hoer, 125 Conn. 196, 203, 4 A.2d 424 (1939); Morehouse v. Throckmorton, 72 Conn. 449, 452, 44 A. 747 (1899).

       Because the plaintiff characterizes exhibit 12 as “merely cumulative and supportive of the facts to be proved by [e]xhibit 14[a],” we focus on exhibit 14a as the foundation for exhibit 16.

       The plaintiff does not challenge the court’s exclusion of the negative escrow amount from the redacted exhibit 16. The issue on appeal, therefore, is whether exhibit 16, as the trial court initially held, was admissible.

       It is useful to note that exhibit 16 does not present the best evidence issues that we confronted in New England Savings Bank v. Bedford Realty Corp., supra, 238 Conn. 745. In that case, we concluded that the plaintiff could not establish the amount of the debt solely through the testimony of a witness whose knowledge of the account was based on reading a file compiled by a previous holder. Id., 757-58. We noted that the plaintiff had not offered into evidence as business records any of the documents on which the witness had relied. Id., 758. We concluded, therefore, that the witness’ testimony, without more, was insufficient to establish the amount of the debt. Id. In order to prove the amount of the debt, the plaintiff was required to submit the actual business records, rather than mere oral testimony regarding their contents. See National Broadcasting Co. v. Rose, 153 Conn. 219, 227, 215 A.2d 123 (1965) (“[t]he proper way to prove the contents of such records is to introduce the record itself rather than to receive oral testimony as to the contents of the records”). In this case, the plaintiff introduced not only the witness’ oral testimony regarding his calculation of the debt, but also a document demonstrating that calculation (exhibit 16), and the record containing the starting figure for his calculation (exhibit 14a).

       Although the defendant filed no statement of alternate grounds for affirmance of the trial court’s dismissal pursuant to Practice Book § 63-4, formerly § 4013, its argument responds to the plaintiffs claim that the trial court improperly declined to render judgment for the plaintiff. Accordingly, we will review the defendant’s claim.

       In addition, although not directly relevant to this case, Practice Book § 10-69, formerly § 186, requires that, in addition to its essentials, a foreclosure complaint must plead “[a]ll encumbrances of record upon the property both prior and subsequent to the encumbrance sought to be foreclosed, the dates of such encumbrances, the amount of each and the date when such encumbrance was recorded; if such encumbrance be a mechanic’s lien, the date of commencing to perform services or furnish materials as therein recited; and if such encumbrance be a judgment lien, whether said judgment lien contains a reference to the previous attachment of the same premises in the same action, as provided by General Statutes § 52-380a.”

       Covenant 19 provides: “Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under paragraphs 13 and 17 unless applicable law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and foreclosure or sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in court the nonexistence of a default or any other defense of Borrower to acceleration and foreclosure or sale. If the default is not cured on or before the date specified in the notice, Lender at Its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke any of the remedies permitted by applicable law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 19, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.”

       The majority does not employ the “clear abuse of discretion” standard to uphold the trial court as was done in Claveloux v. Downtown Racquet Club Associates, 246 Conn. 626, 634, 717 A.2d 1205 (1998). I do not suggest that this standard is proper. See id., 635 (McDonald, J., dissenting).


text:
    WILLOW FUNDING COMPANY, L.P. v. GRENCOM ASSOCIATES ET AL.
    (SC 15827)
    Callahan, C. X, and Norcott, Katz, McDonald and Peters, Js.

      Argued May 1
    officially released September 1, 1998

      Richard L. Albrecht, with whom was Jonathan S. Bowman, for the appellant (plaintiff).

      Matthew J. Forstadt, with whom was Allison Dundas and, on the brief, Robert W. Finke, for the appellees (defendants).

      Ronald Cohen, Kevin S. Murphy and G. David Fensterheim, filed a brief for the Connecticut Bankers Association and Real Estate Capital Recovery Association as amici curiae.
   Opinion

PETERS, J.

This appeal concerns the manner in which a successor mortgagee seeking to foreclose a mortgage originated by a failed lending institution can prove the amount of the borrower’s indebtedness. In the companion case, New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 717 A.2d 713 (1998), we concluded that such a mortgagee can establish a prima facie case with respect to valuation through the introduction of documents that qualify as business records under General Statutes § 52-180. In the present case, the successor mortgagee sought to satisfy its burden by invocation of the law on party admissions as well as the business records rule. In light of the record at trial, we conclude that the successor mortgagee sustained its burden of proof because of the defendants’ admissions, and, therefore, we reverse the contrary judgment of the trial court.

This case arises out of successive assignments of a mortgage debt. On June 13,1988, the named defendant, Grencom Associates (Grencom), executed a note for $1,500,000, payable to Citytrust. The note was secured by a second mortgage on real estate in Greenwich. The defendants Arthur Collins and Arthur D. Emil became guarantors of Grencom’s debt. The defendants did not repay the loan when it matured on June 15,1991. Shortly afterward, Citytrust failed, and the Federal Deposit Insurance Corporation (FDIC) became its receiver. The FDIC hired Consolidated Asset Recovery Corporation (Consolidated) to service the Grencom loan. The plaintiff, Willow Funding Company, L.P., purchased the loan under sealed bid as part of a pool of loans. Accordingly, on December 6, 1994, the FDIC endorsed the note and assigned the mortgage to the plaintiff.

On May 19, 1995, the plaintiff commenced this foreclosure action. It claimed that the unpaid balance on the note was $1,907,384.63, deriving that figure from the amount of the principal balance figure at the time of the FDIC takeover of Citytrust. The defendants stipulated to the execution of the mortgage and the underlying note. They contested the accuracy of the plaintiffs calculations of their indebtedness in only one respect, namely the validity of the principal balance figure of their indebtedness at the time of the takeover. Concluding that the plaintiff had not proved the amount of the indebtedness, the trial court, at the end of the trial, rendered judgment for the defendants on August 5, 1997. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book (1998 Rev.) § 65-1, formerly § 4023.

In this court, the plaintiff raises three claims in support of its contention that it had established the amount of the defendants’ debt at the time of the FDIC takeover from Citytrust. It argues that the trial court improperly: (1) disregarded the defendants’ multiple admissions regarding the existence, amount and balance of the debt; (2) redacted a loan history card maintained by Consolidated to delete its statement of the balance of the debt at the time of the FDIC takeover, even though the card as a whole was admissible as a business record; and (3) concluded that the plaintiff had failed to prove its debt. We agree with the plaintiffs first claim, and, on that basis, we reverse the judgment of the trial court and remand the case for a new trial.

I

We begin with an assessment of the role of party admissions as evidence of that party’s indebtedness. Contrary to the ruling of the trial court, we conclude that the defendants’ admissions in this case provided sufficient evidence of the amount of their debt at the time of the FDIC takeover of Citytrust, as that debt was recorded on the Consolidated loan history card that was introduced into evidence by the plaintiff.

At trial, to support its reliance on the base figure of $1,423,989.71 as the amount of the defendants’ debt at the time of the FDIC takeover, the plaintiff elicited significant admissions derived from the defendant Grencom’s books and records. These documents included Grencom’s balance sheets and federal income tax returns for a number of years. These documents uniformly indicated the same principal balance amount for the Grencom loan that was recorded on the Consolidated loan history card.

In its memorandum of decision, the trial court acknowledged that “[tjhese documents of the defendants carried as the principal balance a figure the same as the opening balance carried on the books of [Consolidated].” The court recognized that the defendants’ documents constituted admissions. Nevertheless, the court concluded that the figure recited in these documents had little probative value, because it was based on City-trust’s records, which Grencom had not verified through an independent audit. The court found, therefore, that the plaintiff had failed to prove the amount of the debt by a preponderance of the evidence.

In this appeal, the question is not the admissibility of the documents, which the court impliedly acknowledged, but the propriety of the court’s finding that the documents had insufficient probative value to sustain the plaintiffs burden of proving the amount of the defendants’ indebtedness. Our standard of review is whether the court’s finding was clearly erroneous. Practice Book § 60-5, formerly § 4061; see Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995) (“[a] finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” [internal quotation marks omitted]). We conclude that the trial court’s finding cannot be sustained in light of the applicable law and the factual record in this case.

In analyzing the trial court’s decision, we begin with the fundamental principles governing the admissions of a party opponent. “The words and acts of a party-opponent are generally admissible against him [or her] under the admission exception.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.1, p. 330. A statement is admissible as an admission even if it: (1) is conclusory; (2) contains a legal or factual conclusion beyond the competence of the person who made the admission; or (3) is not based on personal knowledge. Id., § 11.5.2, p. 332; see Dreier v. Upjohn Co., 196 Conn. 242, 248-49, 492 A.2d 164 (1985). In particular, “[t]he defendant’s corporate ledger sheets acknowledging indebtedness are admissible as admissions by a party opponent whether or not they qualify under the business entry exception to the hearsay rule.” Ferris v. Polycast Technology Corp., 180 Conn. 199, 204, 429 A.2d 850 (1980) (admitting letter written by defendant’s attorney and defendant’s ledger books to substantiate plaintiff s claim regarding amount of indebtedness).

Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact. C. Tait & J. LaPlante, supra, § 11.5.2, p. 332; see Toffolon v. Avon, 173 Conn. 525, 536-37, 378 A.2d 580 (1977). “An evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it.” Remkiewicz v. Remkiewicz, 180 Conn. 114, 118-19, 429 A.2d 833 (1980); see Kucza v. Stone, 155 Conn. 194, 198, 230 A.2d 559 (1967). Although the declarant’s lack of personal knowledge does not affect its admissibility, it is relevant to the weight to be given the admission. Dreier v. Upjohn Co., supra, 196 Conn. 248-49.

At trial, the plaintiff introduced substantial evidence of party admissions by the defendants. The plaintiff called George Peter Henderson, a certified public accountant for Grencom, and, through him, introduced certain of the Grencom’s books and records. Those documents included Grencom’s balance sheets for 1993, 1994, 1995 and 1996, and Grencom’s federal income tax returns for 1993, 1994 and 1995. The principal balance amount of $1,423,989.71 that was shown by these documents was the same amount as that recorded on the Consolidated loan history card for the Grencom loan indebtedness at the time of the FDIC takeover.

Henderson testified that, although he had not audited this debt figure, he had used it repeatedly in the course of Grencom’s business. He had used this debt figure in preparing Grencom’s balance sheet for four years. In addition, for three years, he had used the same figure in preparing Grencom’s federal income tax return, under penalty of perjury. He also testified that the information contained in these tax returns was truthful and accurate in accordance with his responsibility as a tax preparer. Both Henderson and a Grencom general partner had signed each return. Henderson also had sent K-l tax statements with the same debt figure to the partners. Finally, in 1993,1994 and 1995, he had requested extensions for filing, stating as the reason that he needed “additional information ... to complete and file an accurate return.”

In short, over a period of years, the defendants consistently and repeatedly had relied on this debt figure for their own commercial purposes and had sworn to its accuracy in documents submitted to the federal government. Their conduct demonstrates that they themselves had deemed the figure to have unquestioned probative value. The trial court improperly assigned dispositive weight to their contrary assertion at trial.

At trial, the defendants did not otherwise refute this debt figure, but left the plaintiff to its proof. We have rejected the defendants’ claim that, because the defendants did not verify these figures independently, they are devoid of probative value. The defendants made no other challenge to the accuracy of these numbers. In fact, one of the Grencom partners, Collins, testified that he and his partner had signed for the loan, received the money and never paid it back. He further testified, in accord with Henderson, that, as far as he knew, the principal mortgage balance recorded in the Grencom books was accurate.

In light of these uncontroverted facts, we conclude that the trial court was required to conclude that the defendants’ admissions sufficed to satisfy the plaintiffs burden of proof with respect to the defendants’ indebtedness. Ordinarily the trial court has discretion to reject even uncontested evidence, on the theory that the fact finder is uniquely well situated to make determinations of witness credibility. See, e.g ., Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988) (“[t]he jury is under no obligation to credit the evidence proffered by any witnesses, including experts . . . even if that evidence is uncontroverted” [citations omitted]); Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986) (“[t]he trial court is not bound by the uncontradicted testimony of any witness”); see also C. Tait & J. LaPlante, supra, § 3.1, pp. 36-37. This appeal presents an exception to that general rule, in part because the evidence was uncontroverted and overwhelming, and also because the evidence was entirely documentary rather than testimonial. Under these circumstances, the trial court was not free to disregard undisputed, probative evidence.

We conclude that the trial court’s finding that these admissions lacked probative value was clearly erroneous. Practice Book § 60-5, formerly § 4061; see Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). Accordingly, we reverse the judgment of the trial court.

II

The plaintiff argues, alternatively, as it had argued at trial, that the amount of the defendants’ indebtedness also was established by a Consolidated loan history card that stated that $1,423,989.71 was the amount of the beginning principal balance of the Grencom loan at the time that the FDIC took over Citytrust. During the trial, the trial court redacted this amount from the Consolidated card, which the court deemed otherwise to be admissible. It concluded that, even under the business records rule contained in § 52-180, the amount of the indebtedness was inadmissible hearsay in the absence of a Citytrust record or a Citytrust witness who could attest to the reliability and accuracy of Citytrust records. The plaintiff claims that the trial court’s redaction of the Consolidated loan history card was improper.

In the companion case to this appeal, we addressed the role that the business records exception to the hearsay rule plays in the proof of the amount of the current indebtedness of a loan originated by a failed lending institution. New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 606-609. In that case, the issue was the admissibility of the mortgage records of the originating lending institution. In the present case, the issue is the admissibility of the records of an assignee of the mortgage.

In light of our conclusion, in part I of this opinion, that the defendants’ admissions provided sufficient evidence that $1,423,989.71 was the amount of the defendants’ indebtedness at the time of the FDIC’s acquisition of the mortgage, we decline to resolve this issue at this time. We express no opinion regarding either the applicability of the business records rule in general or the sufficiency, under that rule or other applicable rules of evidence, of the testimony of the witnesses who laid the foundation for the admission of the loan history card.

III

On the basis of parts I and II of this opinion, we conclude that a new trial is required before a final judgment can be rendered. Because of its ruling that the plaintiff had presented no persuasive evidence on the amount of the defendants’ debt, the trial court did not address the merits of the defendants’ counterclaim or of their special and affirmative defenses. It is horn-book law that this court does not consider the merits of such claims ab initio. See C. Tait & J. LaPlante, supra, § 3.1, pp. 36-37. They must be resolved in further trial court proceedings.

The judgment is reversed and the case is remanded for a new trial.

In this opinion CALLAHAN, C. J., and NORCOTT and KATZ, Js., concurred.

MCDONALD, J.,

concurring. I agree with the result.

       General Statutes § 52-180 provides in relevant part: “Admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any 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.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. ...”

       Unless the context requires otherwise, we will refer to the defendants collectively.

       Jodi Brightbart, a vice president of the plaintiff, testified that she had calculated the defendants’ debt at the time of trial, including interest and late charges, at a total figure of $1,907,384.63. Brightbart used as her initial principal balance a figure of $1,423,989.71.

       We address the issues in a different order from that in which they were briefed.

       Some of the records round the principal balance amount to the nearest dollar.

       Practice Book § 60-5, formerly § 4061, provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .”

       See footnote 5 of this opinion.

       Having resolved this question on the basis of the admissions explicitly rejected in the trial court’s memorandum of decision, we do not consider the possible weight of additional claimed admissions that the plaintiff contends the trial court “ignored.” These controverted exhibits are, namely, Collins’ acknowledgment of the debt figure in a letter from Collins to his business associate William Stem, and Stern’s deposition testimony regarding Collins’ admission. Similarly, we do not address the defendants’ counterargument that the plaintiff failed to preserve its claim at trial.

       The plaintiff first introduced the loan history card through David Struss, who had been an attorney for Consolidated during the period that the loan was in the Consolidated portfolio. Joanne Haines testified regarding the starting principal balance on that card. Haines testified that she had worked for Citytrust for fifteen years. Beginning in 1991, Consolidated employed her to be a group manager in charge of a $400 million portfolio of loans. Haines explained that when the FDIC took over Citytrust, Consolidated was hired to service the loans. A Consolidated team balanced the Citytrust loans, transferred them into the Consolidated computer, and, finally, conducted a second balancing to ensure the accuracy of the computer data.

       In light of our resolution of parts I and II of this opinion, we do not reach the plaintiffs final claim, namely, that the burden of proving the amount of the debt shifted to the defendant pursuant to General Statutes § 42a-3-308 (b). In large part, the plaintiff offered this argument as a reason for overturning the judgment of the trial court in the event that this court disagreed with the plaintiffs claim that it had established the amount of the indebtedness on the other two grounds it had presented on appeal. Having ruled in the plaintiffs favor on its first ground for appeal, we decline to consider the propriety of its invocation of the Uniform Commercial Code.


author: PETERS, J. MCDONALD, J., with whom BERDON, J.,

text:
    LOUIS CLAVELOUX ET AL. v. DOWNTOWN RACQUET CLUB ASSOCIATES ET AL.
    (SC 15763)
    Borden, Berdon, Palmer, McDonald and Peters, Js.
    Argued April 23
    officially released September 1, 1998

      Daniel P. Scapellati, with whom were Harris B. Appelman and, on the brief, George D. Royster, Jr., for the appellants (defendants).

      David A. Reif with whom was Thomas E. Eaton, for the appellees (plaintiffs).
   Opinion

PETERS, J.

The only certified issue in this case involving premises liability is whether, as the Appellate Court held, the trial court abused its discretion in excluding evidence of a prior accident that allegedly was substantially similar’ to the accident that caused the personal injury in this case. Claveloux v. Downtown Racquet Club Associates, 44 Conn. App. 691, 697, 691 A.2d 1112 (1997). Contrary to the view of the Appellate Court, we conclude that the trial court did not abuse its discretion. Accordingly, we reverse the judgment of the Appellate Court.

The named plaintiff, Louis Claveloux, brought this action against the defendants, the Downtown Racquet Club Associates and Edmund J. Fusco, the general partner of the Downtown Racquet Club Associates, seeking damages for severe injuries that he suffered as a result of slipping on the defendants’ property during a racquetball tournament. After excluding evidence of a prior accident at the club facilities, the trial court granted the defendants’ motion for a directed verdict, which was premised on the plaintiffs failure to produce sufficient evidence to support a prima facie case of premises liability.

The plaintiff appealed to the Appellate Court. That court reversed the trial court’s judgment, finding sufficient similarity between the two accidents to require the disputed evidence to be submitted to the jury on the issue of notice to the defendants of the existence of a defect. Claveloux v. Downtown Racquet Club Associates, supra, 44 Conn. App. 695-96.

The defendants petitioned for certification to appeal to this court. We granted certification limited to the following question: “Did the Appellate Court properly hold that evidence of prior slipping accidents was relevant and admissible to prove that the defendants had notice of the conditions that caused the plaintiffs injury?” Claveloux v. Downtown Racquet Club Associates, 243 Conn. 917, 701 A.2d 327 (1997). We reverse.

I

Before reaching the merits of the dispute between the parties, we need to clarify our standard of review of the trial court’s evidentiary rulings. It is well established that “[t]he trial court has broad discretion in ruling on the admissibility of evidence. ... The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citations omitted; internal quotation marks omitted.) State v. Sullivan, 244 Conn. 640, 646, 712 A.2d 919 (1998); State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997); Potter v. Chicago Pneumatic Tool Company, 241 Conn. 199, 259, 694 A.2d 1319 (1997).

The rule of appellate deference to trial court rulings on evidentiary matters regularly has been applied without distinction between claims that evidence was admitted improperly and claims that evidence was excluded improperly. In this case, however, the Appellate Court adopted just such a distinction. Relying on its previous holding in Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 217, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994), the court held that “[t]he exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence. It is usually possible through instructions or admonitions to the jury to cure any damage due to inclusion of evidence, whereas it is impossible to cure any damage due to the exclusion of evidence.” (Internal quotation marks omitted.) Claveloux v. Downtown Racquet Club Associates, supra, 44 Conn. App. 695.

We disagree with the distinction created by the Appellate Court. In its reasoning, the Appellate Court viewed the issue solely from the perspective of an appellate court. Id. That is not, however, the primarily relevant perspective. Many cases concerning the admission or exclusion of contested evidence require the trial court to make a close call. Under the rule of law stated by the Appellate Court, such a distinction might well persuade a trial court, consciously or unconsciously, to attempt to diminish the odds of reversal by admitting contested evidence into the record. In effect, the Appellate Court’s distinction improperly could cause the trial court to put its thumb on the scale of its discretionary weighing of the evidence and the arguments of the parties. We conclude, therefore, that trial courts should continue to weigh evidentiary offers in a neutral fashion, and that we should continue to require those who, on appeal, challenge a trial court’s evidentiary rulings, whether they result in the admission of evidence or in its exclusion, to show a clear abuse of the trial court’s discretion.

II

The merits of this case concern the admissibility and relevance of evidence of a prior accident to prove the defendants’ responsibility for injuries suffered by the plaintiff. The Appellate Court concluded that the trial court improperly had excluded the evidence. The excluded evidence related to the slip and fall of the plaintiff and another racquetball player, on the previous day, on an adjacent court on the defendants’ premises. The Appellate Court held that that accident was sufficiently similar to the plaintiffs accident in this case to give the defendants notice of a defect or danger on their racquetball courts. In light of the record in this case, we disagree with the Appellate Court’s conclusion that the trial court’s ruling was an abuse of its discretion.

Ordinarily, evidence of other accidents is admissible only upon an evidentiary showing of substantial similarity between the circumstances causing the prior accident and the circumstances presently being litigated. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 571, 657 A.2d 212 (1995); Hall v. Burns, 213 Conn. 446, 451-56, 569 A.2d 10 (1990); Facey v. Merkle, 146 Conn. 129, 135-37, 148 A.2d 261 (1959). The Appellate Court held that this principle was subject to an exception for cases in which evidence of other accidents is offered only to prove notice of a defect or a danger. It concluded that, in such cases, the requirement of substantial similarity is significantly attenuated.

The exception that the Appellate Court articulated was first adopted by that court in Martins v. Connecticut Light & Power Co., supra, 35 Conn. App. 216-17. Claveloux v. Downtown Racquet Club Associates, supra, 44 Conn. App. 695-96. The decision in Martins rested, in large part, on C. McCormick, Evidence (4th Ed. 1992) c. 18, § 200, p. 848, in which the authors recommend that, for the purpose of establishing notice of a defect or danger, prior accidents need only “be such as [would] call [the] defendant’s attention to the dangerous situation that resulted in the litigated accident . . . .”

Several federal court cases, interpreting rule 403 of the Federal Rules of Evidence, similarly have agreed with McCormick’s reasoning. See, e.g., Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1084-85 (5th Cir. 1986) (abuse of discretion in exclusion of evidence of other manufacturers’ designs as evidentiary of defects in defendant’s tire design); Gardner v. Southern Ry. Systems, 675 F.2d 949, 952-53 (7th Cir. 1982) (no abuse of discretion in exclusion of evidence of prior collision between train and motor vehicle at same railroad crossing); Evans v. Pennsylvania R. Co., 255 F.2d 205, 209-10 (3d Cir. 1958) (no abuse of discretion in admitting evidence of notice of prior railroad crossing accidents even though circumstances “not exactly similar”). None of those decisions, however, purports to deprive the trial court of its customary discretion with regard to the admissibility of evidence. In our view, those judgments reflect continued endorsement of the authority of trial courts to make discretionaiy rulings concerning the sufficiency of the evidence of similarity to support the admission of evidence of prior accidents.

It may be that, in appropriate circumstances, we, too, should adopt McCormick’s view that, in exercising its discretion, a trial court, if evidence is offered solely to prove the defendant’s notice of a defect or danger, should view evidence of similar incidents less critically than a proffer of evidence to prove the actual defect. We recognize that this issue is one that our case law has not addressed directly.

For two reasons, however, we are persuaded that this case does not present us with the proper record upon which to decide this issue. One reason arises out of the absence of a proper presentation of the issue of law to the trial court. The other reason arises out of the sparsity of the factual record with respect to the similarity between the plaintiffs accident and the incident that occurred on a prior day.

A

First, in summarizing the plaintiffs position immediately before the trial court’s ruling, the plaintiff stated that “the question [was] whether there was substantial similarity” between the two accidents. (Emphasis added.) At that crucial time, the plaintiff did not allude to a standard of attenuated similarity. He did not respond to the court’s recital of prior Connecticut case law by suggesting that those cases might be distinguishable because his case dealt with notice of a defect. On this record, the plaintiff, in our view, failed to alert the trial court to the argument he now advances.

We are not bound to consider a claim “unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 60-5, formerly § 4061. Moreover, the plaintiff has cited no case in which we have held that the trial court abused its discretion by failing to consider an argument of which it had not been apprised clearly. Procedurally, the plaintiff cannot prevail.

B

Our conclusion is reinforced by the factual circumstances of this case. At trial, the factual basis for establishing similarity was remarkably thin. The essence of the plaintiffs claim was that notice to the defendants of a foreign substance on the floor of one of their racquetbail courts was notice that their other courts also were “generally slippery.” Inherently, that claim is premised upon evidence that the plaintiff slipped and fell because of “generally slippery conditions” on the court on which he was playing.

The parties agree that: (1) in the prior incident, the plaintiff and another racquetball player fell because of an oily foreign substance on the floor of a court other than the one on which the plaintiff was injured; and (2) the plaintiff has not claimed that his injury was caused by an oily foreign substance or any other foreign substance on the court on which he was injured. The parties disagree about whether the presence of a foreign substance inferentially gave notice that the floors of the defendants’ courts were “generally slippery.”

To support the claim that the prior accident gave the defendants relevant notice of “generally slippery conditions” on the court on which the plaintiff suffered his injury, he would have had to make at least a prima facie evidentiary showing that “generally slippery conditions,” in whole or in part, had caused his fall. All that the evidentiary record reveals, however, about the cause of the plaintiffs accident is that he slipped and fell. He did not testify about the reason for his fall or about the condition of the floor of the court at the time of his fall. The plaintiffs witness Bette Ehrgott, who was acting as referee for the racquetball match, testified that she had not seen the plaintiff slip as he fell, and that she had not seen anything improper on the floor. The trial court rejected, for lack of probative value, the testimony of the plaintiffs witness Robert Lampo that, when he arrived at the scene of the accident shortly after its occurrence, areas of the court other than the place of the plaintiffs fall “appeared slippery.” That ruling has not been challenged in this court.

In our view, this record is insufficient to establish an abuse of discretion in the trial court’s ruling to exclude the disputed testimony. Arguably, the record might have permitted the court to exercise its discretion either to admit or to exclude the proffered evidence. This record does not, however, document circumstances that would permit this court to find a clear abuse of discretion by the trial court in ruling as it did.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the plaintiffs’ remaining claims.

In this opinion BORDEN and PALMER, Js., concurred.

MCDONALD, J., with whom BERDON, J.,

joins, dissenting. I disagree with the majority opinion.

I

In part I of the majority opinion, the majority states that evidentiary rulings are reviewed to determine if the trial court clearly abused its discretion. Under this standard, if the trial court is faced with a close call, where it might admit or not admit the evidence, this court will reverse the trial court’s ruling only if it is a clear abuse of discretion. The works of Wigmore, McCormick, Weinstein, Tait and LaPlante, and Holden and Daly will no longer guide our decisions. Regrettably, this leaves the trial courts and counsel with no certain rules of evidence and with a very elastic rule applied only sometimes.

I do not believe that close enough is acceptable. Our abuse of discretion standard renders the rules of evidence alike to a game of horseshoes.

II

As to part II of the majority opinion, I also disagree and believe that the trial court improperly excluded evidence of two prior slipping accidents to prove that the defendants had notice of a dangerous condition that led to the plaintiffs injury. I would, therefore, affirm the decision of the Appellate Court.

At trial, the plaintiff produced evidence that, on November 8, 1987, he was engaged in a racquetball tournament on the defendants’ premises, the Downtown Racquet Club. While playing in the tournament, “the plaintiff . . . slipped, and was propelled head first into the right side wall of the racquetball court. As a result of this accident, the plaintiff became a quadriplegic.” Claveloux v. Downtown Racquet Club Associates, 44 Conn. App. 691, 693, 691 A.2d 1112 (1997).

“The defendants filed a motion in limine to preclude evidence of prior conditions and complaints [at the club] unless they [related to] the same court as the accident and [were] reasonably close in time to November 8, 1987.” (Internal quotation marks omitted.) Id., 694. With respect to that motion, the plaintiff testified that, on November 7,1987, the day before the accident, both he and his playing partner, while warming up, slipped and fell on a different racquetball court at the defendants’ club. Id. According to the plaintiff, the men had slipped on a clear, oily substance in two different locations on that court. Id. The plaintiff testified further that he notified someone at the front desk of the defendants’ club, and, “within a few minutes, a maintenance [person] came and mopped the entire court.” Id.

The trial court granted the motion in limine, ruling that the prior slipping accidents were not substantially similar to the slipping accident that resulted in the plaintiffs injuries. This ruling was improper. Because the evidence was offered to prove notice, the requirement of substantial similarity is lessened. 1 C. McCormick, Evidence (4th Ed. 1992) § 200, p. 848; accord Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 217, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994); C. Tait & J. LaPlante, Connecticut Evidence (1998 Sup.) §.8.9.5, p. 165.

The purpose of the plaintiffs offer supported the admission of the evidence. The plaintiff alleged in his complaint that the defendants’ racquetball courts were defective because the floor was unreasonably slippery, and that the defendants were negligent because, without respect to the nature of the slippery condition, they failed to: (1) maintain the floors adequately, in a “non-slippery condition” suitable for racquetball play; and (2) take reasonable steps to check the condition of the floors during the tournament. The plaintiff elicited testimony from the manager of the defendants’ club, who stated that a slippery condition should not exist on a racquetball court. The plaintiff also produced evidence that the racquetball court floor on which the plaintiff was injured had a slippery spot on the day of the accident. The plaintiff was attempting to introduce evidence of the two prior slipping accidents to show that the defendants had notice both of the slippery condition of the racquetball courts and of their inadequate maintenance of the courts.

The plaintiff was not required to show what caused the slippery condition as a prerequisite to admissibility. See, e.g., Gray v. Fitzgerald & Platt, Inc., 144 Conn. 57, 59, 127 A.2d 76 (1956). Therefore, he should have been allowed to introduce this evidence for the purpose of showing that the defendants were on notice of a dangerous condition on their court floors, regardless of the cause of the slippery condition. The jury reasonably could have concluded that the defendants were on notice of the slippery condition on their courts, and that proper inspection and maintenance could have prevented this dangerous condition.

Ill

I conclude that the trial court should have ruled in accordance with the correct legal standard. The plaintiff should have been allowed to introduce the prior slipping accidents evidence to show that the defendants should have known that their floors were not being adequately maintained. In light of the testimony that the plaintiff was injured on a slippery racquetball court, which the jury could have accepted, the trial court’s decision led it to improperly take the case from the jury.

Accordingly, I respectfully dissent.

       Because the claims of the plaintiff Jean Claveloux, the spouse of the named plaintiff, are derivative of his claims, we refer to Louis Claveloux as the plaintiff.

       In view of its ruling, the Appellate Court did not consider other claims raised by the plaintiff.

       Contrary to Justice McDonald’s assertion in his dissenting opinion, the abuse of discretion standard does not in any way. supplant the rules of evidence contained in Connecticut case law. Abuse of discretion is the standard of review by which an appellate court evaluates the actions of a trial court in applying these rules of evidence.

       Accordingly, we amend the question that we certified. It presently asks: “Did the Appellate Court properly hold that evidence of prior slipping accidents was relevant and admissible to prove that the defendants had notice of the conditions that caused the plaintiffs injury?” Claveloux v. Downtown Racquet Club Associates, supra, 243 Conn. 917. The question should read: “Did the Appellate Court properly hold that the trial court abused its discretion in ruling that evidence of prior slipping accidents was irrelevant and inadmissible to prove that the defendants had notice of the conditions that caused the plaintiffs injury?”

       The plaintiff relies in part on the findings of fact reported in the decision of the Appellate Court in this case. The plaintiffs reliance is misguided. Appellate courts in this state do not find facts. See Practice Book § 60-5, formerly § 4061.

       Justice McDonald’s dissent relies upon Gray v. Fitzgerald & Platt, Inc., 144 Conn. 57, 59, 127 A.2d 76 (1956), for the proposition that evidence of prior accidents is admissible for the purpose of demonstrating notice of slipperiness, regardless of its cause. That reliance is misplaced. The issue in Gray was whether the evidence of slipperiness adduced at trial was sufficient to support the jury’s verdict of negligence. Id. By contrast, in this appeal, the issue is whether the claimed prior incident was sufficiently similar to the plaintiffs accident to be admissible.

       Justice McDonald’s dissent, in assuming that the plaintiff fell because of a slippery floor, overlooks the antecedent point that the plaintiff introduced no evidence concerning the reason for his fall.

       See New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 615 n.1, 717 A.2d 713 (1998) (McDonald, J., dissenting).

       Robert Lampo, a tournament spectator, testified that, immediately after the plaintiff was injured, he entered the court upon which the plaintiff was injured and slipped. The majority states that the trial court rejected this testimony for “lack of probative value . . . .” Because this case was tried to a jury, both the trial court’s rejection of this testimony and the majority’s reliance thereon are incorrect.