St. Angelo Motors, Inc. v. County Development Associates, LLC, C.A. No. 99-0242 (R.I. Super 4/5/2004)
| Decision Date | 05 April 2004 |
| Docket Number | C.A. No. 99-0242 |
| Parties | ST. ANGELO MOTORS, INC. v. COUNTY DEVELOPMENT ASSOCIATES, LLC; CVS CORPORATION; CONSUMER VALUE STORES OF RHODE ISLAND, INC.; BARRINGTON CVS, INC.; CVS, INC.; J. ROBERT PESCE; CVS PHARMACY, INC. |
| Court | Rhode Island Superior Court |
Before this Court is the motion for summary judgment of Defendants County Development Associates, LLC ("CDA"), and CVS Corporation, Consumer Value Stores of Rhode Island, Inc., Barrington CVS, Inc. and CVS, Inc. (collectively "CVS") brought pursuant to Super. R. Civ. P. 56. The Plaintiff St. Angelo Motors, Inc. ("Motors") timely has filed an objection to the motion.
The parties to this matter represent that the material facts relevant to this motion are undisputed. Motors is the owner and leasor of property located at 244 County Road, Barrington, Rhode Island (the "Motors Property"). In late 1997 John St. Angelo ("St. Angelo"), Motors president was contacted by Attorney Joshua Teverow ("Teverow") on behalf of Robert Pesce ("Developer"), a local developer who has business ties with CVS. Teverow contacted St Angelo for the purpose of entering into negotiations for the purchase and sale of the Motors Property1. Developer instructed Teverow not to disclose his involvement in the deal until such time as he deemed appropriate. According to Developer's deposition testimony knowledge of his involvement in a prospective deal would inflate the prices under negotiation2.
On November 25, 1997 Teverow sent a letter to Motors memorializing the terms of the proposed lease and requesting Motors' written consent. Exhibit 2 to Plaintiff's Memo. Motors responded on December 1, 1997 with a signed letter revising and detailing the lease terms set forth in the November 25, 1997 letter. Exhibit 3 to Plaintiff's Memo.
On December 23, 1997 St. Angelo through his attorney Henry Swan expressed his concerns about the identity of the prospective tenant3. Exhibit 4 to Plaintiff's Memo.
In a letter dated January 26, 1998 written by Developer and sent to Joe Oertel4 (Oertel) of CVS, Developer indicated that he had "negotiated a long term lease" with Motors for the Motors Property. Exhibit 6 to Plaintiff's Memo.
On February 28, 1998 Developer wrote a letter to Oertel stating to him: . Exhibit 6 to Plaintiff's Memo.
Prior to the execution of the lease Teverow told St. Angelo that CVS was the proposed tenant for the Motors Property. St. Angelo deposition, pp. 42.
On February 19, 1998 Motors and CDA entered into a lease5 for the Motors Property with the understanding that the property would be leased in order to construct and operate a CVS Pharmacy on the property. The lease had several conditions written into it requiring the acquisition of "permits" as a condition precedent to "possession of the Premises". Part II Article (iv)(b) of the February 19, 1998 Lease. Part II, Article (iv)(b)6 and (iv)(c)7 are the provisions of the lease that directly address the issue of "permits". The lease contains no language governing the number of parking spaces required. Similarly, there is no language indicating a location requirement for the parking spaces. February 19, 1998 Lease.
In a letter dated February 20, 1998 Attorney Swan memorialized Motors' understanding that CVS would guarantee the lease. Exhibit 8 to Plaintiff's Memo.
After signing the lease CDA initiated the process to acquire the necessary zoning approval in order to open a CVS pharmacy on the Motors Property. Teverow indicated to Developer in a letter dated April 30, 1998 that after discussions with the Town Manager, the Building Inspector, and the Chairman of the Design Review Committee of the Planning Board, "[i]t appears that there is a significant permitting process to go through in Barrington, but it also appears that the project will ultimately receive the necessary approvals". Exhibit 12 to Plaintiff's Memo.
CDA filed an Application for Development Plan Review with the Town of Barrington on May 12, 1998.
On May 14, 1998 Oertel informed CDA that CVS had approved the Motors site for the construction and that the project may be referred to as Store #210-02. In that letter Oertel also indicated that he knew the letter would be given to Motors on the condition Motors not disclose CVS' commitment to the site until a time that CVS deemed appropriate8. Exhibit 14 to Plaintiff's Memo.
On May 18, 1998 Teverow forwarded a copy of Oertel's May 14, 1998 letter to Motors. In the communication attached to his letter Teverow referred to the letter as "formal approval" of the CVS store and indicated that CVS will guarantee the lease. Exhibit 15 to Plaintiff's Memo.
Up until this point Motors believed their proposal was the only one that CVS was supporting. St. Angelo deposition, pp. 53. CVS had been leasing a commercial space from ACP Center Associates/Paolino Properties9 ("Paolino Property") in another part of town prior to their application with Motors. Plaintiff's Memo at 13. The building that housed the CVS located on the Paolino Property fell into disrepair and when CVS' lease with Paolino expired CVS demanded as a condition to a new lease that Paolino pay for the cost of reconstruction. Plaintiff's Memo at 13. When Paolino refused CVS decided not to renew the lease and began to look for a different location to construct their building. Plaintiff's Memo at 13. In an effort to retain CVS as tenants, Paolino offered to pay for the demolition and reconstruction costs. Plaintiffs Memo at 13. Unbeknownst to Motors, CVS had two proposals on parallel tracks and on September 11, 1998 Oertel wrote to the Town of Barrington Planning Board ("Planning Board") and declared that CVS had knowledge of and consented to a design and site review application submitted by Paolino for a CVS store. Exhibit 18 to Plaintiff's Memo.
Sometime after executing the lease and addendum with Motors the Defendants retained professional site design engineers and architects to complete plans and designs for the construction of the CVS Pharmacy on the Motors Property. The above-mentioned plans were submitted to the Town of Barrington Planning and Zoning Boards ("Zoning Board") for review. The Town of Barrington Technical Review Committee ("Review Committee") preliminarily approved the plans on September 16, 1998 and six days later on September 22, 1998 the Planning Board granted preliminary approval as well. Exhibits 16 and 17 to Plaintiff's Memo. CVS representatives attended the September 16, 1998 Review Committee and the September 22, 1998 Planning Board meeting. Plaintiff's Memo at 6. CVS representatives verbally expressed10, their support for the application for the construction of a CVS Pharmacy at the Motors Property11. St. Angelo depo, pp. 53.
On October 14, 1998 CDA filed a document called an "Application for Special Use Permit Use or Dimensional Variance of the Zoning Ordinance". On this application they requested a special use permit for drive through service, a dimensional variance for parking with a front yard setback, a special use permit for a pharmacy located in zone B, and a special use permit for additional signage. After the application was filed with the Zoning Board, a hearing was scheduled for November 19, 1998. While the Motor application was pending the Paolino application was still continuing on a parallel track and on October 20, 1998 the Paolino application was approved. According to the deposition testimony of Oertel, CVS decided not to negotiate a sublease with CDA after Paolino obtained zoning approval on October 20, 1998. Pg 97-98 of Exhibit 19 to Plaintiff's Memo.
On November 19, 1998, Teverow obtained from the Zoning Board a continuance of the application until the next Zoning Board meeting Scheduled for December 17, 1998. Prior to the December 17, 1998 meeting but on the same day, the corporation 56 Associates, an entity apparently controlled by Paolino, filed an objection to CDA's zoning application citing the case Newton v. Zoning Board of Review of City of Warwick, 713 A.2d 239 (R.I. 1998)12. Based on that objection counsel for Motors requested by letter, a continuance "in order to evaluate the memorandum of law and any related issues". Exhibit G to Defendants' Motion For Summary Judgment hereinafter referred to as Defendant's Motion. Subsequent to sending their first letter, counsel for Motors sent a second letter on the same day via facsimile to all counsel requesting that CDA go forward on its zoning board application13. When the next Zoning Board meeting was held on December 17, 1998 neither CDA nor CVS were in attendance.
After the December 17, 1998 meeting the application was not presented again and no further action with respect to the zoning request occurred. Permits did not issue. The February 19, 1999 Outside Government Permit Date14 passed.
The case at bar was filed in 1999. During discovery the February 23, 1998 invoice submitted to Developer15 surfaced. According to the invoice produced, Teverow's fees "[f]or services rendered in connection with the [Motors Property] lease for the CVS project" were "due upon permitting of [the] CVS store in Barrington". Exhibit 20 to Plaintiff's Memo. In spite of the fact that the building permits were never obtained, on March 13, 2000 CVS wrote a $50,000 check payable to Teverow. Exhibit 21 to Plaintiff's Memo. The invoices produced by CVS in 2001 also indicate that Developer's corporation Lehigh Reality Associates was reimbursed $80,627.14 for expenses associated with the Motors Property and prior to the Motors deal Developer has been involved in at least four more development projects with CVS.
"Summary judgment is an extreme remedy that should be applied cautiously." Learner v. Ursillo, 765 A.2d 1212, 1216 (R.I. 2001) (citing Sjogren v. Metropolitan Property and Casualty...
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