West Haven Sound Development Corp. v. West Haven, No. 12624

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; DANNEHY
Citation514 A.2d 734,201 Conn. 305
PartiesWEST HAVEN SOUND DEVELOPMENT CORPORATION v. CITY OF WEST HAVEN.
Docket NumberNo. 12624

Page 734

514 A.2d 734
201 Conn. 305
WEST HAVEN SOUND DEVELOPMENT CORPORATION
v.
CITY OF WEST HAVEN.
No. 12624.
Supreme Court of Connecticut.
Argued May 7, 1986.
Decided Aug. 26, 1986.

[201 Conn. 306]

Page 735

Irving H. Perlmutter, with whom were Gary P. Sklaver, Louis Smith Votto, Corp. Counsel, and, on the brief, Jonathan J. Einhorn, former Corp. Counsel, for appellant (defendant).

Charles A. Sherwood, with whom was Joseph R. Mirrione, for appellee (plaintiff).

Before [201 Conn. 305] PETERS, C.J., and SHEA, DANNEHY, CALLAHAN and NOVACK, JJ.

[201 Conn. 306] DANNEHY, Associate Justice.

The plaintiff, West Haven Sound Development Corporation, brought this action against the defendant, city of West Haven, to recover damages for an alleged breach of contract. A jury found for the [201 Conn. 307] plaintiff and awarded damages of $3.1 million.

Page 736

The defendant appealed from the judgment rendered on the verdict.

The parties to this appeal have been involved in litigation for more than eleven years. The facts leading up to the alleged breach have been clearly and adequately set forth in the cases of West Haven v. Impact, 174 Conn. 160, 384 A.2d 353 (1978), and New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 459 A.2d 999 (1983). We will, therefore, limit ourselves to a brief discussion of the facts relevant to the defendant's claims on appeal.

The jury could reasonably have found that the plaintiff, then doing business under the name of Phyllis', the defendant, and the West Haven Redevelopment Agency entered into a contract early in 1973. Under the terms of the contract, the defendant conveyed to the plaintiff a parcel of land by a deed containing the condition that the land be used in accordance with the defendant's urban renewal plan (the plan) for the Savin Rock area of West Haven. The plan, which was also incorporated by reference into the contract, provided that a substantial portion of the land in the Savin Rock area would be developed for commercial, recreational and apartment use. The parties to the contract expressly agreed that there could be no modification of the plan affecting the rights of the redevelopers without their consent. The plaintiff constructed a restaurant facility on its parcel, at a cost of approximately $1.7 million. The restaurant opened for business in December, 1973.

On October 17, 1974, a referendum initiated by a civic organization called Impact was passed by the voters of West Haven. The referendum required the city to reverse its course and turn the remaining undeveloped Savin Rock property into a public park. The West [201 Conn. 308] Haven redevelopment agency then informed all of the existing redevelopers of the referendum and sought their consent to the proposed "modification" of the plan. The plaintiff was one of several redevelopers who withheld consent. Unsure of how next to proceed, the city of West Haven sought a declaratory judgment to determine whether the referendum in fact constituted a modification of the plan within the meaning of General Statutes § 8-136. 1 The trial court concluded that the referendum was not a modification of the original plan and that the city could enforce it without the redevelopers' approval. On appeal to this court that decision was reversed. See West Haven v. Impact, supra.

Between the passage of the referendum and our decision in Impact, redevelopment in the Savin Rock area was at a standstill. In May, 1977, the plaintiff's business closed. The plaintiff then filed this action, alleging that its business had failed because the defendant had breached its contract with the plaintiff by modifying the original redevelopment plan. At trial, the jury found for the plaintiff and awarded damages of $3.1 million. The defendant subsequently moved to set aside the verdict, and for judgment notwithstanding the verdict. The motions were denied.

On appeal, the defendant claims that the trial court erred: (1) in failing to find that the city of West Haven was not the proper defendant; (2) in failing to find that the defendant was excused from fulfilling its contractual[201 Conn. 309] obligations under the doctrine of impossibility of performance; (3) in not setting aside the verdict as excessive; and (4) in allowing certain expert testimony regarding the value of plaintiff's business. We affirm the trial court's ruling with respect to the defendant's liability under the

Page 737

contract; we find error, however, on the issue of damages and remand that issue for further proceedings.
I
LIABILITY

The defendant's first contention is that the trial court should have found as a matter of law that the city of West Haven was not liable for any failure to implement the plan. The defendant's contention is premised on the notion that the redevelopment agency, created through a state enabling statute; see General Statutes § 8-126; 2 is an agency of the state, and that under the urban renewal statutes in chapter 130, responsibility for redevelopment rests with the agency. From this premise it argues that any failure to implement the plan should be viewed solely as a breach by the redevelopment agency, an entity which the defendant claims is separate and distinct from the city of West Haven.

The defendant's argument fails for several reasons. First, the city of West Haven was a separate party to the contract itself, and thus even if the redevelopment agency were to be considered a state agency, the town could still be held liable for breach of contract as a principal obligor. In addition, the fact that the West Haven [201 Conn. 310] redevelopment agency was created in accordance with a state enabling statute does not necessarily make it an agency of the state. General Statutes § 8-126 authorizes municipalities to create a redevelopment agency, but unlike local boards of education which are considered state agencies; see Fowler v. Enfield, 138 Conn. 521, 86 A.2d 662 (1952); the creation of a redevelopment agency is not mandated. In addition, language throughout chapter 130 speaks of a "municipality, acting by and through its redevelopment agency." See General Statutes §§ 8-134, 8-135. Finally, while redevelopment agencies are granted broad powers under chapter 130 to propose and implement redevelopment plans; see General Statutes §§ 8-127, 8-128, 8-137; ultimate authority to approve a plan, to make substantial modifications in such a plan, and to approve land disposition agreements under a plan remains with the municipality. See General Statutes §§ 8-127, 8-136, 8-137.

The jury heard evidence that the West Haven redevelopment agency was created by the city of West Haven and that its members were appointed by city officials. The jury had before it the contract for the sale of the land to the plaintiff. The parties to the contract were "the West Haven Redevelopment Agency, an agency of the City of West Haven, Connecticut ... the City of West Haven ... and The Phyllis's Incorporated." (Emphasis added.) The deed of conveyance specifically refers to the West Haven redevelopment agency as "an agency of the City of West Haven, Connecticut, not being a distinct and separate corporate entity." Extensive evidence was also presented regarding the respective duties of the agency and the city in proposing, approving, implementing and modifying a plan of redevelopment. 3 From

Page 738

all of the evidence presented[201 Conn. 311] , it would have been reasonable for the jury to have found that the relationship between the defendant and the redevelopment agency was one of agency, and that the defendant was liable for the breach of contract.

Ordinarily, the question of agency is one of fact to be determined by the trier of fact. Cohen v. Meola, 184 Conn. 218, 220, 439 A.2d 966 (1981); Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979); Cleaveland v. Gabriel, 149 Conn. 388, 394-95, 180 A.2d 749 (1962). In this case, however, the trial court effectively removed that issue from the jury's consideration by directing the jury to find that the West Haven redevelopment agency was an agent of the city of West [201 Conn. 312] Haven. The trial court instructed the jury that "the plaintiff has made certain allegations in its complaint which have been responded to by the defendant in the answer. These allegations made by the plaintiff are not disputed because they have been admitted by the defendant." The court then went on to identify the specific allegations in the complaint which had been admitted by the defendant. Among those were "the allegations of paragraph four to the effect that the plaintiff's previously existing restaurant facility was taken by the defendant, demolished, and that the plan as adopted by the defendant through its agent, the West Haven Redevelopment Agency, did set forth the manner and fashion that said redevelopment of Savin Rock Urban Renewal Project was to proceed, and especially the type and nature of the development contemplated thereby." (Emphasis added.) The court then instructed the jury that these allegations were "admitted by the defendant's answer and are therefore binding upon the defendant and relieve the plaintiff from the necessity of proving the facts as alleged."

The trial court's charge was correct. "Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." Dreier v. Upjohn Co., 196 Conn. 242, 248, 492 A.2d 164 (1985); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 406 n. 1, 446 A.2d 799 (1982); Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); Lutkus v. Kelly, 170 Conn. 252, 257, 365 A.2d 816 (1976); Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971); see Tait & LaPlante, Connecticut Evidence (1976) § 6.7(a). The defendant admitted agency in its answer, and at no time during the trial of this case did it seek to have its...

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  • Foley v. Huntington Co., No. 13331
    • United States
    • Appellate Court of Connecticut
    • August 27, 1996
    ...Facts 2d, Forensic Economics--Valuation of Businesses and Business Losses § 7, p. 271." West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 329, 514 A.2d 734 A commercial real estate appraiser testified for the plaintiff and set the value of the property at $7 million on the ba......
  • Barry v. Posi-Seal Intern., Inc., POSI-SEAL
    • United States
    • Appellate Court of Connecticut
    • September 13, 1994
    ...to the extent that he has made reasonable but unsuccessful efforts to avoid loss.' " West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986). The plaintiff here has, by obtaining employment elsewhere, either avoided or mitigated the loss. Normally, the dete......
  • Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, No. 15730
    • United States
    • Supreme Court of Connecticut
    • September 15, 1998
    ...on the "standard valuation procedures recognized in the accounting profession." West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 321, 514 A.2d 734 (1986). As noted above, Ferreira had prior experience in making business projections. We conclude that, in this regard, the tria......
  • Weiss v. Smulders, Nos. 19158
    • United States
    • Supreme Court of Connecticut
    • August 26, 2014
    ...an entity by its sales and profits and does not take physical assets into account. See West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 329, 514 A.2d 734 (1986) (“[w]hile there are several different methods by which to determine the value of a closely-held corporation, these......
  • Request a trial to view additional results
90 cases
  • Foley v. Huntington Co., No. 13331
    • United States
    • Appellate Court of Connecticut
    • August 27, 1996
    ...Facts 2d, Forensic Economics--Valuation of Businesses and Business Losses § 7, p. 271." West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 329, 514 A.2d 734 A commercial real estate appraiser testified for the plaintiff and set the value of the property at $7 million on the ba......
  • Barry v. Posi-Seal Intern., Inc., POSI-SEAL
    • United States
    • Appellate Court of Connecticut
    • September 13, 1994
    ...to the extent that he has made reasonable but unsuccessful efforts to avoid loss.' " West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986). The plaintiff here has, by obtaining employment elsewhere, either avoided or mitigated the loss. Normally, the dete......
  • Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, No. 15730
    • United States
    • Supreme Court of Connecticut
    • September 15, 1998
    ...on the "standard valuation procedures recognized in the accounting profession." West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 321, 514 A.2d 734 (1986). As noted above, Ferreira had prior experience in making business projections. We conclude that, in this regard, the tria......
  • Weiss v. Smulders, Nos. 19158
    • United States
    • Supreme Court of Connecticut
    • August 26, 2014
    ...an entity by its sales and profits and does not take physical assets into account. See West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 329, 514 A.2d 734 (1986) (“[w]hile there are several different methods by which to determine the value of a closely-held corporation, these......
  • Request a trial to view additional results

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