Landmark Inv. Grp., LLC v. Calco Constr.

• Decision Date: 29 September 2015
• Docket Number: No. 19287.,19287.
• Citation: 124 A.3d 847,318 Conn. 847
• Parties: LANDMARK INVESTMENT GROUP, LLC v. CALCO CONSTRUCTION AND DEVELOPMENT COMPANY et al.
• Court: Connecticut Supreme Court

318 Conn. 847

124 A.3d 847

LANDMARK INVESTMENT GROUP, LLC

v.CALCO CONSTRUCTION AND DEVELOPMENT COMPANY et al.

No. 19287.

Supreme Court of Connecticut.

Argued March 17, 2015.

Decided Sept. 29, 2015.

Kerry M. Wisser, West Hartford, for the appellant(plaintiff).

Walter A. Twachtman, Jr., Glastonbury, for the appellees(named defendant et al.).

Opinion

McDONALD, J.

The dispute in the present case has a long and circuitous history, which began more than one decade ago when the plaintiff, Landmark Investment Group, LLC(Landmark), a commercial real estate developer, entered into a contract to purchase an environmentally contaminated property in the town of Plainville(town) with the hopes of remediating and developing it for commercial use.The seller of the property, Chung Family Realty Partnership, LLC (Chung, LLC), repudiated the contract for sale after receiving a more attractive offer from the defendants, CALCO Construction & Development Company(Calco) and John Senese, Calco's president and owner.¹After the defendants funded Chung, LLC's unsuccessful defense of Landmark's action for specific performance of the contract, Landmark was nevertheless unable to purchase the property after it was sold at a foreclosure auction where a company controlled by Senese was the highest bidder.Landmark then brought the present action against the defendants, alleging tortious interference with its contractual relations and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq.After the jury returned a verdict in favor of Landmark on both counts, the trial court granted the defendants' motion for judgment notwithstanding the verdict and rendered judgment for the defendants.Landmark now appeals from the judgment of the trial court,²claiming, inter alia, that the trial court improperly granted the defendants' motion because it failed to view the evidence in the light most favorable to sustaining the jury's verdict, and that the trial court incorrectly concluded that Landmark presented insufficient evidence to support its claims.We agree and, accordingly, reverse the judgment of the trial court and remand the case for further proceedings.

The jury reasonably could have found the following facts.In January, 2005, Landmark first entered into a contract to purchase a nine acre parcel of land known as 311–349 New Britain Avenue in Plainville (property) with Chung, LLC.The property required environmental remediation and at that time contained only dilapidated buildings.Chung, LLC, which had encumbered the property with two purchase money mortgages when it purchased the property several years earlier, listed it for sale after being unable to complete the development.Although Landmark was aware that the property required remediation, Landmark learned, shortly after entering into the contract, that the estimated cost of remediation was significantly higher than anticipated—approximately $1.3 million.Landmark and Chung, LLC, then supplanted the January contract with a new contract on June 30, 2005, which provided Landmark with greater protections regarding the remediation and development plans for the property (Landmark–Chung contract).

The Landmark–Chung contract contained a number of contingencies to account for the uncertainties surrounding the environmental remediation of the property.Notably, the contract required Chung, LLC, within twenty days of the execution of the agreement, to develop a remediation action plan at its expense and file it with the state Department of Environmental Protection(department),³whose approval of such a plan is necessary before cleanup can begin on a contaminated property.The Landmark–Chung contract further provided that, once a remediation action plan was approved, Landmark, with the participation of the town, was to file an application with the Connecticut Brownfields Redevelopment Authority (authority) which would, if such application was approved, provide funding to assist with the cost of remediating the property.In the absence of such funding, however, the cost of remediation was to fall on Chung, LLC; the contract required that Chung, LLC, place the entire net proceeds from the sale of the property, minus certain deductions, in escrow pending the completion of the remediation.The escrow funds were to be used to offset any shortfall between the funding provided by the authority and the total cost of remediation.

The Landmark–Chung contract also contained certain contingencies to ensure that Landmark would be able to develop the property for commercial use.Notably, within ninety days of the receipt of the funding from the authority, Landmark was to apply for certain regulatory approvals, including, inter alia, building permits, wetlands approvals, and traffic approvals, and, in the event any such approval was not obtained to Landmark's satisfaction, Landmark maintained the right to terminate the Landmark–Chung contract.Landmark also was to apply for a loan from a financial institution to be secured by a first mortgage on the property.While all of these conditions were being performed and until closing occurred, the Landmark–Chung contract required that Chung, LLC, keep current all municipal taxes.

Shortly after entering into the contract, however, relations between Chung, LLC, and Landmark began to unravel.Two months after the Landmark–Chung contract was executed, Chung, LLC, was seeking “a way out” of the deal.Moreover, in spite of Chung, LLC's agreement to prepare the remediation action plan within twenty days, months passed without its compliance with this contractual obligation.Despite the significant delay, Landmark nevertheless undertook efforts to market the property and to develop alternative site plans for development.

Meanwhile, unbeknownst to Landmark, in December, 2005, Senese met with Chung, LLC's real estate broker to discuss the property and began negotiations regarding Calco's plan to purchase and develop it.Chung, LLC's broker informed Senese that the property was under contract, but nevertheless drafted a letter of intent on Calco's behalf to serve as a backup offer for the purchase of the property, which Senese submitted in January, 2006.This letter of intent contained terms similar to the Landmark–Chung contract,⁴a copy of which Chung, LLC's managing member, Henry Chung, agreed to share with Senese.Although Chung, LLC, never acted on this letter of intent, the defendants remained interested in the property.

It was not until August, 2006, that Landmark received notice that the department had approved a remediation action plan, which estimated that the cost of remediation would be only $265,000.Because this estimated cost was significantly lower than originally anticipated, the town indicated that it would not participate in the application to the authority, which decision was fatal to Landmark's application for funding.Because the authority funding was unavailable, Chung, LLC, took the position that the Landmark–Chung contract was void and would need to be renegotiated.Landmark, however, contended that the contract could continue to be performed according to its terms.Landmark and Chung, LLC, met in early September, 2006, to discuss their disagreement as to the continued validity of the Landmark–Chung contract, but were unable to reach a resolution.

While relations between Chung, LLC, and Landmark continued to unravel, Chung, LLC, and Calco continued to discuss the potential sale of the property.Calco submitted a second letter of intent on September 21, 2006, containing a lower purchase price, but with many other attractive terms, including a $250,000 nonrefundable deposit, and, most importantly, an “as is” provision that promised a closing within thirty days.Thus, under the terms of Calco's second letter of intent, Chung, LLC, would have no responsibility for the cost to remediate the property, which was a great benefit to Chung, who was insolvent.Although Chung, LLC, did not immediately act on Calco's second letter of intent, a few weeks after receipt of the offer, Chung met with Senese and was eager to discuss the possibility of a contract with Calco.At that meeting, Senese assured Chung that Calco was willing and able to purchase the property in accordance with the terms of the second letter of intent, and promised that Calco would close on the property quickly.

On October 27, 2006, approximately two months after Landmark learned that the town would not participate in the application to the authority, Chung, LLC, sent a letter to Landmark purporting to terminate their contract for the sale of the property.The letter provided, inter alia, that the Landmark–Chung contract was predicated upon receipt of funding from the authority and that, because the town would not join the application, the contract was “incapable of being performed.”In light of Chung, LLC's repudiation of the contract, Landmark's ability to move forward with the steps necessary to develop the property was hindered because the regulatory approvals required Chung, LLC's cooperation.Shortly after the repudiation, however, Landmark filed an action against Chung, LLC, seeking specific performance of the Landmark–Chung contract, and recorded the contract and a lis pendens on the town land records.

While Landmark's specific performance action was pending, in March, 2007, Calco and Chung, LLC, finally entered into a formal contract for Calco to purchase the property.That contract acknowledged the existence of Landmark's legal action and provided that the closing would occur within fifteen days of a resolution of that action in favor of Chung, LLC, and a release of the lis pendens from the land records.Calco's obligation to purchase the property was contingent, however, on Calco purchasing and receiving assignments of the first and second mortgages that encumbered the property, which were then in default and at risk of foreclosure with Chung, LLC, owing...