Al Dente, LLC v. Consiglio

• Decision Date: 21 March 2017
• Docket Number: AC 38279
• Citation: 157 A.3d 743,171 Conn.App. 576
• Parties: AL DENTE, LLC, et al. v. Richard E. CONSIGLIO, Executor (Estate of Flora Consiglio), et al.
• Court: Connecticut Court of Appeals

171 Conn.App. 576

157 A.3d 743

AL DENTE, LLC, et al.

v.Richard E. CONSIGLIO, Executor (Estate of Flora Consiglio), et al.

AC 38279

Appellate Court of Connecticut.

Argued December 6, 2016

Officially released March 21, 2017

Laurence V. Parnoff, with whom, on the brief, was Laurence V. Parnoff, Jr., for the appellants (plaintiffs).

Daniel P. Scholfield, with whom, on the brief, was Hugh F. Keefe, for the appellees (named defendant et al.).

Lawrence J. Greenberg, for the appellee (defendant Ruth Consiglio).

DiPentima, C. J., and Prescott and Alander, Js.

PRESCOTT, J.

The plaintiffs, Al Dente, LLC, and Carmine Capasso, appeal from the summary judgment rendered by the trial court in favor of the defendants, Robert G. Consiglio, Ruth F. Consiglio, and Richard E. Consiglio, individually, and as executor of the estate of Flora Consiglio. The plaintiffs claim that the court improperly concluded that no genuine issue of material fact existed as to any count of their operative complaint. We affirm the judgment of the trial court.

Mindful of the procedural posture of the case, we set forth the following facts as gleaned from the pleadings, affidavits, and other proof submitted, viewed in a light most favorable to the plaintiff. See Martinelli v. Fusi , 290 Conn. 347, 350, 963 A.2d 640 (2009). The defendants are owners of Sally's Apizza (Sally's), a culinary landmark on Wooster Street in New Haven. In 2013, the defendants entertained offers to purchase Sally's and the land on which it is situated. One such offer was made on December 3, 2013, by "Al Dente, LLC, a to be formed Connecticut limited liability company" comprised of Capasso and five other individuals, including his brother, Vincent Capasso, Kristen Keslow, Marc Keslow, and Tara Knight (collectively, original entity).¹ Weeks earlier, the original entity had retained Brenner, Saltzman & Wallman, LLP (law firm), to help prepare that offer and to organize Al Dente, LLC. The November 26, 2013 retainer agreement furnished by the law firm and "[a]ccepted, acknowledged, and agreed to" by Capasso was addressed to six individuals—Knight, Capasso, Kristen Keslow, Marc Keslow, Vincent, Capasso's brother, and Giuseppe DeLucia—and outlined "the terms and conditions upon which [the law firm] will undertake to represent you.... In connection with the organization of Al Dente, LLC, we will undertake to represent the new entity and the six of you collectively in your capacity as organizers and initial owners of Al Dente, LLC."² The law firm drafted the December 3, 2013 written agreement to purchase Sally's, which Capasso signed on behalf of the original entity.

The defendants received several bids in excess of one million dollars. Capasso thereafter grew concerned that the original entity's bid was being "used to get [other bidders] to offer more and to increase [the] purchase price ...." He therefore informed the defendants that the original entity would not "continue with the purchase of Sally's unless [they] came to an agreement [on] a bidding process to set the [c]ontract purchase price and to keep final bids confidential." On March 27, 2014, members of the original entity met with certain defendants and their legal representatives, at which time they orally agreed to the following protocols regarding the bidding process for the purchase of Sally's (collectively, bidding agreement): (1) initial bids would be disclosed to all parties presenting offers; (2) final bids would be due by 5 p.m. on April 14, 2014; (3) the identities of the bidding parties would remain confidential; (4) any bids submitted after that deadline would not be accepted; and (5) the highest bid would set the sale price. The defendants further agreed to "commence negotiations for sale with the highest bidder" following the submission of final bids. Consistent with the foregoing, Attorney Robert W. Lynch, acting on behalf of the defendants,³ disclosed the results of the first round of bidding in an April 7, 2014 e-mail to the bidding parties. In that correspondence, Lynch also apprised the parties that "[t]here will be one more round of bidding with all bids due by 5 p.m." on April 14, 2014.

Capasso submitted a timely second bid on behalf of the original entity in an April 14, 2014 e-mail to Lynch. Attached to that e-mail was a letter addressed to the defendants regarding the "Purchase and Sale of Assets and Real Property." That correspondence contained a proposed "agreement [that] sets forth the terms and conditions for the acquisition ... of the pizzeria business known as Sally's ... together with the real property located at 237 and 245 Wooster Street ...." Twelve pages in length, that proposed agreement states that it "contains all material terms and conditions of the Purchase Transaction and is intended to obligate Seller and Purchaser to consummate the transactions contemplated hereby. It is, accordingly, the intent of the parties hereto that this agreement constitute a legally binding and enforceable agreement." The proposed agreement also contains a merger clause, as § 9 (c) states that "[t]his agreement constitutes the entire agreement among the parties with respect to the matters covered hereby and supersedes all prior agreements, understandings, offers, and negotiations (oral or written). This agreement may be amended or modified only by a subsequent agreement in writing signed by each of the parties." The proposed agreement concludes by prescribing an exclusive method of acceptance, stating: "If you are in agreement with the terms of this agreement, please so indicate by countersigning this letter in the appropriate space below, whereupon this agreement shall become a binding agreement among the signatories hereto." None of the defendants signed that agreement.

At approximately 5:30 p.m. on the evening of April 14, 2014, Lynch e-mailed the bidding parties and disclosed the amounts of two new bids.⁴ He further stated that "[w]e plan to meet with the [defendants] to go over the new bids and negotiate the terms and conditions of the purchase agreement." After learning that the original entity was the high bidder, Capasso emailed Lynch on April 15, 2014, stating in relevant part: "Please let us know if you need to meet with us to go over the terms of our proposal. Look forward to working with you." The following day, Knight e-mailed Lynch. Noting that "[f]rom your e-mail it appears we have the highest offer," Knight inquired as to the "next step" in the process.⁵ On April 17, 2014, Lynch replied that "Greenberg and I need to review your contract with our clients and make a list of issues that need to be worked out."

On April 21, 2014, Capasso again e-mailed Lynch, stating that he was "following up to see if any terms within our bid need to be worked through."⁶ Capasso further stated that "[d]uring our [March 27, 2014] meeting with the [defendants] the parameters of the sale were brought up and we were informed that the highest price at the last bid would prevail and that the terms of the sale would be worked out. It has been brought to my attention that the condition of expansion and the pizza [oven] are not acceptable to the [defendants].

Please strike this term from our proposal. Please let us know if there are any other terms within our proposal that are not acceptable to the [defendants] and we will work out those terms as well" Lynch subsequently informed Capasso that he needed to meet with his clients "to go over the contract and see what issues they have. We will then prepare a joint response with [Greenberg] and his client and will send the joint response to you for your review and comment."

On May 9, 2014, Lynch sent an e-mail to the law firm, which stated simply: "Here are the comments of the [defendants] to the latest Al Dente proposal." Attached to that e-mail was a one page document containing nine comments regarding the April 14, 2014 agreement (comment sheet).⁷ In an e-mail sent to the law firm later that day, Capasso stated that "[o]ur group will be meeting to discuss the comments this weekend."⁸

On May 14, 2014, Capasso sent Lynch a two sentence letter that reads: "Enclosed, please find our signed counter offer with our deposit check for Sally's. Please get back to us with a closing date."⁹ Appended to that letter were two documents. The first was a cashier's check in the amount of $333,000 payable to "Robert W. Lynch Trustee" and "Lawrence J. Greenberg Trustee." The second was a modified version of the comment sheet, to which the following had been added: "Addendum To Contract Signed 4/14/2014. The foregoing nine (9) terms submitted by the Seller are hereby confirmed to be additional to the Contract signed 4/14/2014 and are made a part thereof" (addendum sheet).¹⁰ Capasso signed that document, as did a notary public and two "witnesses" thereto.¹¹ Notably, that document was not signed by any of the defendants.

As Robert G. Consiglio swore in his affidavit, the defendants instructed Lynch "to return the unsolicited 'deposit check.' " By letter dated May 20, 2014, and addressed to Attorneys Samuel M. Hurwitz and Jennifer Deakin at the law firm, Lynch stated: "Enclosed please find the unsolicited cashier's check which was delivered to our office last week." Later that day, Deakin emailed Lynch and Greenberg to inform them that "[o]ur client was troubled to learn that your clients do not believe they have a binding agreement with [the original entity] based on the bid procedures established by their counsel. [The original entity] believes it has a binding agreement with your clients as a result of the bid procedures and related events and remains ready, willing and able to complete the transactions on the basis of that agreement. Please advise on a closing date." Lynch replied approximately one hour later, stating that "[w]e don't have a binding agreement with any potential purchaser at this time nor has there been any decision as to who the purchaser will be. The [original entity's] bid is still being...