LANDRY v. SPITZ, No. CV 03-0828535S (Jun. 1, 2005)

MILLER, JUDGE.

The defendants have filed two motions, which the Court must address, prior to the start of evidence in this matter.

By motion dated March 9, 2005, the defendants have asked the Court to preclude all parol evidence from the plaintiff "to vary, contradict, or otherwise explain" a September 23, 1997 settlement agreement between the parties, claiming that this agreement "unambiguously expresses the parties' intent with respect to the matters at issue in this lawsuit."

The "Settlement Agreement" in question is the transcript of proceedings before Judge Aurigemma on September 23, 1997. At that time, the parties to a shareholder's derivative lawsuit placed a negotiated agreement on the record. The Court approved the settlement (as it is required to do in such suits) and the parties entered into an agreement for future payments to be made to minority shareholders of the subject corporation as well as terms under which the majority shareholders, or their designees, could purchase the interests of the minority shareholders.

The plaintiff in this action was a minority shareholder in the subject corporation at the time of the 1997 "Settlement Agreement." He brought this action against the former, majority shareholders claiming, inter alia, that he is entitled to a percentage of the corporation's gross sales in the year 2002, the year in which he sold his interest in the corporation to the majority shareholders. The defendants claim that plaintiff is entitled to no such payment because he was not a shareholder at the time of the year-end distribution.

Defendants argue that the Court should allow no parol evidence CT Page 9455 on this issue because the "Settlement Agreement" is unambiguous on the question of whether a minority shareholder is entitled to an annual distribution, based on a percentage of certain gross sales of the corporation, if that shareholder sold his or her minority interest during the year. Following a careful review of the "Settlement Agreement," the Court finds that this issue simply is not addressed in the agreement, and that the agreement is sufficiently ambiguous that the Court will consider the admissibility of parol evidence on the claim.

The Motion in Limine is therefore denied.

The defendants have also moved to quash a subpoena served on defendant Lauren Engel Spitz, which subpoena calls for the production of a variety of documents as well as the defendant's physical presence in Court. Defendant objects to the subpoena on timeliness grounds and objects to the production of the requested documents on the ground that the requests are unduly burdensome and require her to produce documents, which are not within her physical control.

Insofar as the defendant seeks to have the subpoena quashed in its entirety, the Motion is denied. A defendant in a civil lawsuit should reasonably anticipate that one side or the other will want her to testify, and plaintiff's counsel notified defense counsel several days before service that a subpoena would be forthcoming.

The Motion to Quash is, however, granted, insofar as it calls for the production of documents not within this defendant's possession. This defendant need produce only such documents as she has within her possession.

Miller, J. CT Page 9456