Landmark Investment Group, LLC v. CALCO Construction & Development Co. ( 2015 )

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LANDMARK INVESTMENT GROUP, LLC v. CALCO
CONSTRUCTION AND DEVELOPMENT
COMPANY ET AL.
(SC 19287)
Rogers, C. J., and Palmer, Zarella, Eveleigh and McDonald, Js.
Argued March 17—officially released September 29, 2015
Kerry M. Wisser, for the appellant (plaintiff).
Walter A. Twachtman, Jr., 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 Invest-
ment Group, LLC (Landmark), a commercial real estate
developer, entered into a contract to purchase an envi-
ronmentally contaminated property in the town of
Plainville (town) with the hopes of remediating and
developing it for commercial use. The seller of the prop-
erty, 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.1 After the
defendants funded Chung, LLC’s unsuccessful defense
of Landmark’s action for specific performance of the
contract, Landmark was nevertheless unable to pur-
chase 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 interfer-
ence 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 judg-
ment of the trial court,2 claiming, 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 pre-
sented 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 prop-
erty with two purchase money mortgages when it pur-
chased 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 con-
tract 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 sur-
rounding the environmental remediation of the prop-
erty. 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 Pro-
tection (department),3 whose approval of such a plan is
necessary before cleanup can begin on a contaminated
property. The Landmark-Chung contract further pro-
vided 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 prop-
erty. 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, wet-
lands approvals, and traffic approvals, and, in the event
any such approval was not obtained to Landmark’s sat-
isfaction, 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, rela-
tions between Chung, LLC, and Landmark began to
unravel. Two months after the Landmark-Chung con-
tract 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 compli-
ance with this contractual obligation. Despite the signif-
icant 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 regard-
ing 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,4 a 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 remedia-
tion 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 sub-
mitted 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 immedi-
ately 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 con-
tract for the sale of the property. The letter provided,
inter alia, that the Landmark-Chung contract was predi-
cated 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, Land-
mark’s ability to move forward with the steps necessary
to develop the property was hindered because the regu-
latory approvals required Chung, LLC’s cooperation.
Shortly after the repudiation, however, Landmark filed
an action against Chung, LLC, seeking specific perfor-
mance 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 more than $240,000. Pursuant
to the contract, Calco was to receive from Chung, LLC,
interest only payments on the mortgages and agreed
that it would not declare them in default and would
not initiate foreclosure, but only ‘‘so long as [Calco’s
purchase and sale agreement] remain[ed] in force or
effect . . . .’’ (Emphasis added.)
On the same day that Calco and Chung, LLC, executed
their purchase and sale agreement, they also executed
multiple side agreements, which included agreements
that (1) Calco would loan Chung, LLC, funds to defend
Landmark’s action for specific performance, which
Chung alone was unable to afford, (2) Calco would loan
Chung, LLC, funds for payment of municipal property
taxes then due or as they accrued, on which Chung,
LLC, had already fallen behind by nearly $14,000, and
(3) Chung, LLC, was indebted to Calco for the cost of
‘‘legal fees for representation in these matters, which
. . . include negotiations incident to the [purchase and
sale] [a]greement between them, and resolution of vari-
ous related issues’’ (collectively, Calco-Chung con-
tracts). Calco’s agreements to provide these loans were
secured by a mortgage on the property, as well as an
assignment of a mortgage owned by Chung on another
property located in Manchester, which was his only
source of income. Under the terms of the Calco-Chung
contracts, the total amount of each of those loans would
become due ninety days after Calco’s purchase and sale
agreement ceased to be in effect. Although the Calco
purchase and sale agreement was a ‘‘backup offer’’ in
the sense that it recognized the priority of the Land-
mark-Chung contract and the action for specific perfor-
mance, Senese acknowledged that the Calco-Chung
contracts were unlike any other backup offer he had
submitted or encountered in his twenty-five years of
experience as a real estate developer.
Despite Chung, LLC’s efforts to defeat Landmark’s
action for specific performance, and, after borrowing
more than $200,000 from Calco to fund that defense,
Landmark ultimately prevailed. In 2009, the trial court,
Dunnel, J., concluded that the repudiation of the Land-
mark-Chung contract was an unjustified breach of that
contract, and the court rendered a judgment of specific
performance, which was affirmed by the Appellate
Court on December 28, 2010. Landmark Investment
Group, LLC v. Chung Family Realty Partnership, LLC,
125 Conn. App. 678, 708, 10 A.3d 61 (2010), cert. denied,
300 Conn. 914, 13 A.3d 1100 (2011). While the action
was pending, however, Chung, LLC, failed to keep the
taxes on the property current, notwithstanding the
agreement that Calco would loan it funds to do so.
Because of this failure, the town initiated a foreclosure
action on the property, and, after the entry of a judgment
of foreclosure, the property was set to be sold at auction
on January 22, 2011.
After the Appellate Court affirmed the judgment of
specific performance, Landmark, knowing that the date
of the foreclosure sale was approaching, offered to pur-
chase the tax liens on the property in an effort to fore-
stall the sale so as to enable Landmark and Chung, LLC,
to perform under the terms of the Landmark-Chung
contract. Landmark and the town reached an agreement
whereby the town consented to having the foreclosure
judgment opened and the sale date extended, in light
of Landmark’s representation that it would purchase
the full amount of the tax liens. On the date of the
hearing on the motion to open the judgment and extend
the sale, however, Calco’s attorney entered an appear-
ance to oppose the motion, arguing that Calco had a
right to have the foreclosure sale proceed because its
mortgages on the property were in ‘‘serious default
. . . .’’ The court, Hon. Lois B. Tanzer, judge trial ref-
eree, nevertheless agreed to open the judgment and
extend the date of the foreclosure sale, moving the
auction date to March 19, 2011. Plainville v. Chung
Family Realty Partnership, LLC, Superior Court, judi-
cial district of New Britain, Docket No. CV-10-6004745-
S (January 18, 2011).
The same day that the court granted the motion to
extend the foreclosure sale, Calco sent a letter to the
town also offering to purchase the tax liens. Faced with
competing offers, the town refused to sell the liens to
either Landmark or Calco and chose instead to allow
the foreclosure sale to proceed. Although Chung, LLC,
urged Landmark to buy the property immediately at a
lower purchase price, rather than pursue the conditions
under the contract, Landmark declined to do so, con-
tending that the judgment of specific performance enti-
tled Landmark to pursue the required regulatory
approvals and to seek a bank loan before it was obli-
gated to purchase the property. As a final effort to
salvage its ability to pursue those conditions, Landmark
offered to loan Chung, LLC, the amount it owed in taxes,
but, in exchange for such a loan, Landmark requested
that it be granted a first mortgage on the property,
which would have required Calco to subordinate the
mortgages that it had purchased as part of the Calco-
Chung contracts. Calco, however, refused to do so.
Without the ability to reach an agreement regarding the
payment of the taxes, the foreclosure sale went forward,
at which a company controlled by Senese was the suc-
cessful bidder for the property. The trial court there-
after approved the sale and committee deed. Plainville
v. Chung Family Realty Partnership, LLC, Superior
Court, judicial district of New Britain, Docket No. CV-
10-6004745-S (April 6, 2011).
The record also reveals the following procedural his-
tory. Landmark brought this action against the defen-
dants alleging in its fourth amended complaint that
they tortiously interfered with Landmark’s contractual
relations and that such interference constituted ‘‘unfair
competition or unfair deceptive acts or practices, or
both,’’ in violation of CUTPA. See General Statutes § 42-
110b (a). Prior to trial, Landmark applied for a prejudg-
ment remedy pursuant to General Statutes § 52-278a et
seq., to attach real and personal property owned by the
defendants, which the trial court, Swienton, J., denied.
In its memorandum of decision, the court found that the
defendants’ actions were ‘‘nothing more than aggressive
business practices’’ and, therefore, found that the con-
duct of the defendants could not constitute tortious
interference or violations of CUTPA. The court’s denial
of a prejudgment remedy was affirmed by the Appellate
Court. Landmark Investment Group, LLC v. Calco Con-
struction & Development Co., 141 Conn. App. 40, 55,
60 A.3d 983 (2013).
The case was later tried to a jury, and, at the close
of Landmark’s case-in-chief, the defendants filed a
motion for a directed verdict, on which the trial court
reserved judgment. The jury later returned a verdict in
favor of Landmark on both counts alleging tortious
interference and violation of CUTPA. The jury awarded
Landmark damages in the amount of $4 million, and,
finding that both defendants had acted with reckless
indifference to Landmark’s rights, concluded that Land-
mark should also be awarded common-law punitive
damages.5 After the court accepted the jury’s verdict,
the defendants filed a motion for judgment notwith-
standing the verdict, in which they argued, inter alia,
that there was insufficient evidence to prove that either
Calco or Senese tortiously interfered with the Land-
mark-Chung contract or that they violated CUTPA.
In granting the defendants’ motion, the trial court
issued a lengthy memorandum of decision outlining
the court’s conclusion that Landmark failed to present
sufficient evidence from which the jury could find that
Landmark proved either of its two claims. The court
began by adopting anew the facts that it had found
when it denied Landmark’s application for a prejudg-
ment remedy. With respect to Landmark’s tortious inter-
ference claim, the trial court first concluded that, as a
matter of law, the jury could not consider as evidence
any of the defendants’ conduct that occurred after Octo-
ber 27, 2006—the date that Chung, LLC, repudiated the
Landmark-Chung contract—because, according to the
trial court, once the contract was breached, the defen-
dants could not have interfered with its performance.
The court then held that no reasonable jury could have
found in Landmark’s favor on its tortious interference
claim because, prior to that repudiation, the only con-
duct on which Landmark relied in support of its claim
was Calco’s submission of letters of intent as backup
offers, which, the court maintained, were not tortious
as a matter of law. The court went on to conclude,
however, that even if it considered all of the evidence
presented up until the property was sold at the foreclo-
sure sale, Landmark still failed to prove its claim of
tortious interference because the defendants’ actions
‘‘were merely good business practices taken by Calco
to protect its interest in the property.’’ Moreover, the
court held that Landmark failed to establish that it suf-
fered ‘‘actual loss’’—an essential element of its claim
of tortious interference—as a result of the defendants’
conduct because any loss was caused, not by the defen-
dants’ conduct, but rather by Landmark’s failure to pur-
chase the property after it won a judgment of specific
performance. Finally, the court held that, even if it were
to find that Landmark presented sufficient evidence of
tortious interference, it failed to present any evidence
from which the jury could conclude that the defendants
acted with reckless indifference to Landmark’s contrac-
tual rights because, as the court had previously con-
cluded when it denied Landmark’s application for a
prejudgment remedy, ‘‘[the defendants’] action[s] were
nothing more than aggressive business practices.’’
(Internal quotation marks omitted.) Thus, the court held
that Landmark could not recover punitive damages on
its claim of tortious interference.
Next, with respect to Landmark’s claim that the
defendants’ conduct violated CUTPA, the court con-
cluded that no reasonable jury could have found that the
defendants committed any unfair or deceptive practice
prohibited by CUTPA, and, second, that even if the
defendants’ actions were unfair or deceptive, Landmark
failed to prove that it suffered any ‘‘ascertainable loss’’
as a result of the defendants’ conduct. Thus, the court
rendered judgment for the defendants on both counts.
On appeal, Landmark challenges each of the trial
court’s conclusions and argues that the court improp-
erly substituted its own factual findings for those that
reasonably could have been found by the jury. Land-
mark further contends that it presented sufficient evi-
dence from which the jury could find that the
defendants tortiously interfered with the Landmark-
Chung contract and did so with a reckless indifference
to Landmark’s rights, and that the defendants’ conduct
violated CUTPA. The defendants, however, argue that
the court properly rendered judgment in their favor
because the jury’s verdict was not in accordance with
the law or the evidence presented at trial. We note that
the defendants did not argue before the trial court or
this court that Landmark could not obtain a judgment
for tortious interference based on its contract with
Chung, LLC, after it was awarded specific performance.
As Justice Zarella indicates in his concurring opinion,
there is some authority that supports the proposition
that, once a party to a contract is awarded specific
performance, the contract merges into the decree of
specific performance, and any further claims must be
raised through an action to enforce that judgment,
rather than an action based on the contract. Because
this issue was not raised, however, we decline to con-
sider it.
Before turning to the merits of these arguments, we
begin by articulating the standard of review that governs
our resolution of these claims. ‘‘We have stated that
directed verdicts are disfavored because [l]itigants have
a constitutional right to have factual issues resolved by
the jury. . . . Accordingly, [o]ur review of a trial
court’s [decision] to direct a verdict or to render a
judgment notwithstanding the verdict takes place
within carefully defined parameters.’’ (Citation omitted;
internal quotation marks omitted.) Harris v. Bradley
Memorial Hospital & Health Center, Inc., 296 Conn.
315, 336, 994 A.2d 153 (2010). ‘‘[I]n reviewing the trial
court’s decision to render judgment notwithstanding
the verdict, we may affirm that decision only if we find
that the jury could not reasonably and legally have
reached their conclusion. . . . The question is not
whether we would have arrived at the same verdict,
but whether, when viewed in the light most favorable
to sustaining the verdict, the evidence supports the
jury’s determination.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Id., 346–47;
see also Ulbrich v. Groth, 310 Conn. 375, 414, 78 A.3d
76 (2013) (role of trial court on motion for judgment
notwithstanding verdict ‘‘is not to sit as [an added] juror
. . . but, rather, to decide whether, viewing the evi-
dence in the light most favorable to the prevailing party,
the jury could reasonably have reached the verdict that
it did’’ [internal quotation marks omitted]). A trial court
may only grant a motion for judgment notwithstanding
the verdict if the ‘‘jury reasonably and legally could not
have reached any other conclusion’’; (internal quotation
marks omitted) Haynes v. Middletown, 314 Conn. 303,
311–12, 101 A.3d 249 (2014); and must deny such a
motion ‘‘where it is apparent that there was some evi-
dence upon which the jury might reasonably reach [its]
conclusion . . . .’’ (Internal quotation marks omitted.)
Salaman v. Waterbury, 246 Conn. 298, 304, 717 A.2d 161
(1998). We review a trial court’s decision on a motion
for judgment notwithstanding the verdict for abuse of
discretion. Grayson v. Wofsey, Rosen, Kweskin & Kuri-
ansky, 231 Conn. 168, 178, 646 A.2d 195 (1994).
At the outset, we note that we agree with Landmark
that the trial court’s memorandum of decision indicates
that the court failed to view the evidence in the light
most favorable to sustaining the jury’s verdict, the most
stark indication of which was that, rather than marshal-
ing the evidence from the trial most favorable to Land-
mark, the court relied on factual findings it made when
it denied Landmark’s application for a prejudgment
remedy before the trial even took place. See E. J. Han-
sen Elevator, Inc. v. Stoll, 167 Conn. 623, 628–29, 356
A.2d 893 (1975) (‘‘[t]he adjudication made by the court
on the application for a prejudgment remedy is not part
of the proceedings ultimately to decide the validity and
merits of the plaintiff’s cause of action’’). We must nev-
ertheless consider whether, even when viewing the evi-
dence in the light most favorable to Landmark, the trial
court’s judgment could be affirmed on the ground that
Landmark presented insufficient evidence to support
its claims. We conclude, in applying the proper defer-
ence to the jury’s verdict, that the trial court improperly
granted the defendants’ motion for judgment notwith-
standing the verdict.
I
We begin with Landmark’s claim that the trial court
improperly rendered judgment in the defendants’ favor
on the count alleging tortious interference with Land-
mark’s contractual relations. ‘‘A claim for tortious inter-
ference with contractual relations requires the plaintiff
to establish (1) the existence of a contractual or benefi-
cial relationship, (2) the defendants’ knowledge of that
relationship, (3) the defendants’ intent to interfere with
the relationship, (4) the interference was tortious, and
(5) a loss suffered by the plaintiff that was caused by
the defendants’ tortious conduct.’’ (Internal quotation
marks omitted.) Appleton v. Board of Education, 254
Conn. 205, 212–13, 757 A.2d 1059 (2000). In the present
case, the parties only dispute the final two elements
of Landmark’s cause of action, namely, whether the
defendants’ conduct was in fact tortious and whether
Landmark established that it suffered actual loss as a
result of the defendants’ conduct. We consider each of
those two elements in turn.
A
With respect to the issue of whether the defendants’
conduct was tortious, Landmark makes two arguments.
First, Landmark contends that the trial court incorrectly
held that the jury could only consider evidence that
predated the repudiation of the Landmark-Chung con-
tract as supporting its claim of tortious interference.6
Second, Landmark argues that, in considering the cumu-
lative impact of the evidence, the jury reasonably could
have found that the defendants’ conduct was tortious
because the evidence indicated that the defendants
‘‘were on a mission to acquire the property’’ and that
their conduct amounted to ‘‘business assassination’’
rather than ‘‘ ‘merely good business practices . . . .’ ’’
As a threshold matter, we first consider what conduct
may properly be considered in support of Landmark’s
claim that the defendants acted tortiously. The trial
court held that, as a matter of law, because the Land-
mark-Chung contract was breached on October 27,
2006, the contractual relations between Landmark and
Chung, LLC, ended as of that date, and, therefore, the
jury could only consider evidence of conduct preceding
that date. This was so, the court opined, because ‘‘con-
duct after the breach . . . could not have induced
Chung, LLC, to breach the contract.’’ (Emphasis in origi-
nal.) Landmark argues that this conclusion was incor-
rect because the Landmark-Chung contract remained
in effect from the time it was entered in June, 2005,
until the property was lost after confirmation of the
foreclosure sale in April, 2011, and, therefore, the jury
could properly consider as evidence all of the defen-
dants’ conduct occurring during that time period.7 We
agree with Landmark.
This court reviews de novo a trial court’s conclusion
on a matter of law. Watts v. Chittenden, 301 Conn. 575,
585, 22 A.3d 1214 (2011). To resolve this issue, we first
note that it is not necessary for a plaintiff to prove that
a contract was in fact breached in order to recover on
a claim of tortious interference. See, e.g., Herman v.
Endriss, 187 Conn. 374, 376–77, 446 A.2d 9 (1982). More-
over, the mere fact that a contract is breached does
not necessarily mean that the contractual relationship
between two parties has terminated. Indeed, a multi-
tude of issues must be considered in determining
whether contractual relations have ceased, including,
for example, whether such a breach was material. See,
e.g., Revere Real Estate, Inc. v. Cerato, 186 Conn. 74,
80, 438 A.2d 1202 (1982). As is relevant in this case,
even a total repudiation of a contract may not terminate
contractual relations when the nonbreaching party
elects to insist on specific performance of the
agreement, and specific performance is so ordered. If
it were otherwise, a nonbreaching party could not suc-
cessfully obtain an order of specific performance with
respect to a contract that, legally, was fully ‘‘terminated’’
as opposed to one that was simply ‘‘breached.’’ See
Levy v. Massachusetts Accident Co., 124 N.J. Eq. 420,
430–31, 2 A.2d 341 (1938) (‘‘Where one party . . . says
that he will no longer perform or be bound by [the]
terms [of a contract], the contract is of course not
thereby terminated. He has no right to, and cannot,
terminate the contract; the wronged party may refuse
to consider the contract terminated and may sue to
compel the wrongdoer to perform its terms.’’ [Emphasis
added.]).8 Although in another case it may be proper to
conclude that a plaintiff may not allege acts of tortious
interference occurring after the date that a contract is
breached, under the facts of this case, where Landmark
sought and won specific performance of its contract,
it is evident that Landmark’s and Chung, LLC’s contrac-
tual relationship endured until the property was sold
at the conclusion of the foreclosure. Thus, all of the
defendants’ conduct occurring between June, 2005,
when the Landmark-Chung contract was entered, and
April, 2011, when the purchase of the property by Sen-
ese’s company at the foreclosure sale was confirmed
by the trial court, could properly be considered by the
jury in determining whether Landmark presented suffi-
cient evidence of tortious interference.9 The trial court’s
conclusion to the contrary was improper.
In light of this conclusion, we next consider Land-
mark’s argument that the defendants’ conduct, when
viewed as a whole, was sufficient to support the jury’s
finding that their conduct was indeed tortious. Land-
mark argues that the jury reasonably could have found
that the defendants sought to exercise an economic
‘‘stranglehold’’ over Chung by loaning Chung, LLC,
funds to defend Landmark’s specific performance
action and to pay municipal taxes, as well as promising
not to foreclose on the mortgages on the property, but
only so long as Calco’s purchase and sale agreement
was in effect. Furthermore, Landmark contends that the
jury could infer through the totality of the defendants’
conduct that they were acting maliciously and with
the purpose to interfere with Landmark’s contractual
rights. The defendants, however, disagree that the jury
could infer any improper motive on their part because
none of their acts were individually wrongful. We agree
with Landmark that the jury had before it sufficient
evidence from which it could conclude that the defen-
dants’ conduct was tortious.
This court has held that, in an action for tortious
interference, ‘‘not every act that disturbs a contract or
business expectancy is actionable. . . . [F]or a plain-
tiff successfully to prosecute [an action for tortious
interference] it must prove that the defendant’s conduct
was in fact tortious. This element may be satisfied by
proof that the defendant was guilty of fraud, misrepre-
sentation, intimidation or molestation . . . or that the
defendant acted maliciously.’’ (Citations omitted; inter-
nal quotation marks omitted.) Daley v. Aetna Life &
Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999);
see also Blake v. Levy, 191 Conn. 257, 262, 464 A.2d 52
(1983) (‘‘[a] claim is made out [only] when interference
resulting in injury to another is wrongful by some mea-
sure beyond the fact of the interference itself’’ [internal
quotation marks omitted]). ‘‘The plaintiff in a tortious
interference claim must demonstrate malice on the part
of the defendant, not in the sense of ill will, but inten-
tional interference without justification.’’ (Internal quo-
tation marks omitted.) Daley v. Aetna Life & Casualty
Co., supra, 806. Whether a defendant’s interference is
tortious is a question of fact for the jury. Cf. Suarez v.
Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d
507 (1994) (intent to injure is ‘‘a question of fact that
is ordinarily inferred from one’s conduct or acts under
the circumstances of the particular case’’); Batick v.
Seymour, 186 Conn. 632, 646–47, 443 A.2d 471 (1982)
(questions of motive and intent are questions of fact
for jury); see also 4 Restatement (Second), Torts, Inter-
ference with Contract § 767, comment (l), p. 39 (1979)
(‘‘the determination of whether . . . interference was
improper . . . is ordinarily left to the jury, to obtain
its common feel for the state of community mores and
for the manner in which they would operate upon the
facts in question’’).
In light of the facts before it, the jury reasonably
could have concluded that, after enticing Chung, LLC,
to repudiate its contract with Landmark by promising
better contract terms,10 the defendants sought to exploit
Chung’s financial hardship and to exert economic pres-
sure over him and his company in an effort to ensure
that Chung, LLC, would be forced to continue to pursue
a contractual relationship with the defendants, in dero-
gation of the contract that Chung, LLC, had with Land-
mark. See 4 Restatement (Second), supra, § 767,
comment (c), p. 31 (‘‘[e]conomic pressure . . . is a
common means of inducing persons not to deal with
another’’ and to determine whether such pressure is
proper, fact finder can consider, inter alia, ‘‘the circum-
stances in which it is exerted . . . the degree of coer-
cion involved, the extent of the harm that it threatens
. . . and the general reasonableness and appropriate-
ness of this pressure as a means of accomplishing the
actor’s objective’’). By enabling and encouraging Chung,
LLC, to fight the specific performance action by funding
that litigation, the defendants ensured that the perfor-
mance of the Landmark-Chung contract was more bur-
densome to perform. Furthermore, because the
defendants agreed to forgo collection on the loans it
had provided to Chung, LLC, and to forgo foreclosing
on the property only so long as the Calco purchase and
sale agreement was in effect, as Chung, LLC, was driven
deeper into the defendants’ debt, it was forced to strive
to terminate the contractual relationship with Land-
mark so that the contract with the defendants could go
forward. Otherwise, Chung, LLC, risked not only losing
the property through the defendants’ foreclosure on the
defaulted mortgages, but Chung also risked losing his
only source of income, which had been assigned to
Calco as collateral in exchange for the agreement to
loan litigation expenses and money for the payment of
municipal taxes. The jury reasonably could have con-
cluded that this conduct constituted extreme economic
pressure that went beyond the normal industry practice
of competition between rival developers. See Church
of Scientology International v. Eli Lilly & Co., 848 F.
Supp. 1018, 1029–30 (D.D.C. 1994) (question of whether
defendant’s economic pressure amounted to tortious
interference was issue for jury). Tellingly, Senese con-
ceded at trial that the Calco-Chung contracts were
unusual and unlike any other backup offer he had
extended in his career.
The jury also could have inferred that the defendants
had an illicit motive when, for example, after Landmark
won specific performance of the Landmark-Chung con-
tract and there was no longer any question that Land-
mark had the right to purchase the property, the
defendants took steps to prevent Landmark from
extending the date of the foreclosure sale of the prop-
erty, which otherwise would have enabled Landmark
to perform under the terms of its contract. Notably, the
defendants did not display any interest in purchasing
the tax liens from the town until immediately after they
became aware that Landmark had the opportunity to
do so. Although, on its own, such conduct may not be
wrongful, the jury was free to view this action as only
one part of a continuing scheme aimed at preventing
Landmark from successfully purchasing the property.
Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480,
502 n.23, 656 A.2d 1009 (1995) (in tortious interference
cases, ‘‘trier of fact ordinarily may infer . . . intent
[and malice] from the defendant’s conduct or acts in
light of the circumstances of the particular case’’). In
sum, the jury reasonably could have found that the
defendants’ acts were part of a concerted effort to inten-
tionally interfere with the Landmark-Chung contract,
beyond any form of accepted business practice, so that
Calco could purchase the property itself. Although the
trial court may have disagreed with the jury’s conclu-
sion, it was within the province of the jury to make
this determination.
We are not persuaded by the defendants’ attempt to
disassemble each of their acts from all of their others,
and to characterize each of these disaggregated acts as
individually innocuous. The jury was permitted to view
the totality of the evidence and draw the inference that
the defendants intended to interfere with Landmark’s
contractual relations and did so with malice. See, e.g.,
American Diamond Exchange, Inc. v. Alpert, 101 Conn.
App. 83, 92–93, 920 A.2d 357, cert. denied, 284 Conn.
901, 931 A.2d 261 (2007). Thus, it was improper for the
trial court to set aside the jury’s verdict on this element
of Landmark’s tortious interference claim.
B
Having concluded that Landmark presented suffi-
cient evidence from which the jury could find that the
defendants’ conduct was tortious, we next consider
whether Landmark presented sufficient evidence as to
its claim of actual loss.
The record reveals the following additional facts with
respect to this claim. At trial, Landmark presented the
report and testimony of William E. Kane, Jr., who was
qualified as an expert, in support of its claim that it
suffered actual loss as a result of the defendants’ tor-
tious interference. Kane, a commercial real estate
appraiser certified by the state of Connecticut and a
designated member of the Appraisal Institute, used both
a sales comparison approach and an income capitaliza-
tion approach; see United Technologies Corp. v. East
Windsor, 262 Conn. 11, 17 nn.9 and 10, 807 A.2d 955
(2002); to conduct analyses to determine the amount
of profits Landmark lost when it was unable to develop
the property according to its plans. After developing
those analyses and taking into consideration the pur-
chase price and costs of development, Kane determined
that Landmark’s lost profits were approximately $4.5
million. In reaching that conclusion, Kane made a series
of assumptions, including ones relating to Landmark’s
ability to obtain the necessary municipal and state
approvals and to secure mortgage financing. Notably,
the defendants did not present their own expert to
challenge Kane’s assumptions or conclusions.
Despite this evidence, the trial court concluded that
no reasonable jury could have found that the defendants
caused Landmark any loss because Landmark did not
prove that there was a reasonable probability that it
would have purchased the property or would have been
able to develop it. The court based this conclusion prin-
cipally on two separate grounds: first, that Kane’s
assessment as to Landmark’s lost profits was not credi-
ble; and second, that Landmark’s failure to purchase
the property after the judgment of specific performance
was rendered was the actual cause of Landmark’s loss,
notably, because Landmark did not present evidence
indicating that it was pursuing any of the conditions
that it argued it had the right to be fulfilled prior to
purchasing the property.11
Before this court, the defendants largely parrot the
trial court’s reasoning in arguing that Landmark failed to
prove that it suffered actual loss. Landmark, however,
disagrees with each of the trial court’s reasons and
contends, first, that Kane’s testimony provided the jury
with sufficient evidence of Landmark’s lost profits, and
second, that the trial court improperly concluded that
Landmark was required to purchase the property imme-
diately after the judgment of specific performance,
rather than pursue the contingencies under the con-
tract. We agree with Landmark.
It is well established that, in order for a plaintiff to
recover for a claim of tortious interference, it must
establish that, ‘‘as a result of the interference, the plain-
tiff suffered actual loss. . . . [P]roof that some damage
has been sustained is necessary to [support a cause of
action for tortious interference].’’ (Citations omitted;
footnotes omitted; internal quotation marks omitted.)
Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20,
33–34, 761 A.2d 1268 (2000); see also Goldman v. Fein-
berg, 130 Conn. 671, 675, 37 A.2d 355 (1944) (‘‘it is
essential to a cause of action for unlawful interference
. . . that it appear that, except for the tortious interfer-
ence of the defendant, there was a reasonable probabil-
ity that the plaintiff would have . . . made a profit’’
[emphasis added]). ‘‘A major problem with damages of
this sort, [however], is whether they can be proved with
a reasonable degree of certainty. . . . If the question
is whether the plaintiff would have succeeded in
attaining a prospective business transaction in the
absence of [the] defendant’s interference, the court
may, in determining whether the proof meets the
requirement of reasonable certainty, give due weight
to the fact that the question was made hypothetical by
the very wrong of the defendant.’’ (Internal quotation
marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics,
Inc., supra, 34.
The evidence established, through Kane’s report and
testimony, that had Landmark been able to purchase
and develop the property in accordance with its plans,
it would have profited, and the jury reasonably could
have found that the defendants’ interference is what
prevented Landmark from completing its purchase and
expected development. Although Kane’s evaluation was
based on a series of assumptions, namely, that Land-
mark would receive the regulatory approvals necessary
to develop the property, those assumptions were sup-
ported by evidence that Landmark would have indeed
been able to obtain such approvals. See, e.g., Beverly
Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, 247 Conn. 48, 70, 717 A.2d 724 (1998) (‘‘[a]
damage theory may be based on assumptions so long
as the assumptions are reasonable in light of the record
evidence’’ [internal quotation marks omitted]). The
defendants did not provide the jury with any evidence
to controvert this point, nor did they present any evi-
dence that such approvals would have contained condi-
tions so objectionable that they would have led
Landmark to choose to terminate the Landmark-Chung
contract rather than to go forward with its plans for
development.12 Moreover, the defendants did not pre-
sent their own expert to contest the reasonableness of
Kane’s lost profits evaluation. Whether Kane’s testi-
mony was credible in light of the evidence was a deter-
mination for the jury to make.13 See, e.g., Kervick v.
Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044
(2013) (‘‘[n]othing in our law is more elementary than
that the trier is the final judge of the credibility of
witnesses and of the weight to be accorded their testi-
mony’’ [internal quotation marks omitted]).
With respect to the question of whether Landmark
caused its own loss by failing to purchase the property
immediately after it won a judgment of specific perfor-
mance, we note that the only opportunity Landmark
had to purchase the property at that juncture was not
in accordance with the terms of the Landmark-Chung
contract, but rather required Landmark to purchase the
property without the protections afforded to it in its
contract. Although the trial court faulted Landmark for
not seeking to fulfill the conditions of the contract
because it did not submit applications for regulatory
approvals or for a bank loan, the jury reasonably could
have found that it was the defendants’ conduct that
caused Landmark to have reason to doubt that it was
ever going to have the opportunity to purchase the
property, and, therefore, to rightfully withhold perfor-
mance of those conditions. See, e.g., Hi-Ho Tower, Inc.
v. Com-Tronics, Inc., supra, 255 Conn. 34 (‘‘[i]f the
question is whether the plaintiff would have succeeded
in attaining a prospective business transaction in the
absence of [the] defendant’s interference, the court may
. . . give due weight to the fact that the question was
made hypothetical by the very wrong of the defendant’’
[internal quotation marks omitted]); Romaniello v. Pen-
siero, 21 Conn. App. 57, 61, 571 A.2d 145 (1990) (‘‘[t]he
law does not require a party to proceed with prepara-
tions for performance if such preparations would be
futile’’). Indeed, it would be nonsensical to require Land-
mark, as the injured party, to pursue these contingen-
cies at its expense after Chung, LLC’s repudiation of
the contract, or, after the judgment of specific perfor-
mance, in light of the uncertainty surrounding Land-
mark’s ability to purchase the property while the
foreclosure was proceeding to an auction. Cf. 2
Restatement (Second), Contracts § 257, comment (a),
p. 296 (1981) (‘‘[a]n injured party who continues to
perform in spite of a repudiation may . . . be pre-
cluded . . . from claiming damages for loss that he
could have avoided’’).
Moreover, to the extent that the trial court suggested
that Landmark did not have the right to proceed under
the precise terms of the Landmark-Chung contract after
the trial court rendered a judgment of specific perfor-
mance, we disagree. Landmark’s insistence that it have
the opportunity to perform pursuant to the terms of its
contract is consistent with the law.14 See, e.g., Bleecher
v. Conte, 29 Cal. 3d 345, 353–55, 698 P.2d 1154, 213 Cal.
Rptr. 852 (1981) (affirming award of specific perfor-
mance after seller’s repudiation of contract where buy-
er’s obligation to tender purchase price was conditioned
on city’s approval of development plans, giving buyer
‘‘reasonable time limit’’ to fulfill conditions); 81A C.J.S.
319, Specific Performance § 149 (2004) (in awarding
specific performance, ‘‘the court ordinarily should fol-
low and give effect to the terms of the contract’’). Thus,
we conclude that the trial court improperly found that
Landmark failed to establish that the defendants caused
Landmark to suffer actual loss, and, consequently,
improperly rendered judgment notwithstanding the ver-
dict on Landmark’s claim of tortious interference.
II
We next consider Landmark’s argument that it pre-
sented sufficient evidence from which the jury could
find that the defendants acted with reckless indiffer-
ence to Landmark’s rights under the Landmark-Chung
contract, thereby supporting the jury’s determination
that Landmark should be awarded common-law puni-
tive damages.15
As this court recently reaffirmed: ‘‘In order to obtain
an award of common-law punitive damages, the plead-
ings must allege and the evidence must be sufficient to
allow the trier of fact to find that the defendant exhib-
ited a reckless indifference to the rights of others or
an intentional and wanton violation of those rights.’’
(Internal quotation marks omitted.) Hylton v. Gunter,
313 Conn. 472, 491–92, 97 A.3d 970 (2014). Once again,
‘‘we are mindful that in reviewing the trial court’s deci-
sion to render judgment notwithstanding the verdict,
we may affirm that decision only if we find that the
jury could not reasonably and legally have reached their
conclusion. . . . The question is not whether we would
have arrived at the same verdict, but whether, when
viewed in the light most favorable to sustaining the
verdict, the evidence supports the jury’s determina-
tion.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) Harris v. Bradley Memorial
Hospital & Health Center, Inc., supra, 296 Conn.
346–47.
We agree with Landmark that the jury had before it
sufficient evidence from which it could conclude that
the defendants acted with at least reckless indifference
to Landmark’s rights. The jury was properly instructed
that the ‘‘characteristic element’’ of recklessness ‘‘is the
design to injure either actually entertained or to be
implied from the conduct and circumstances.’’ See, e.g.,
Nolan v. Borkowski, 206 Conn. 495, 501, 538 A.2d 1031
(1988). As we previously explained, the jury was free
to infer from the totality of the defendants’ conduct
that their actions were all part of a concerted effort to
obstruct Landmark’s contractual rights, done with the
purpose to prevent Landmark from being able to pur-
chase the property so that the defendants could obtain
it for themselves. Notably, their actions taken after
Landmark won the judgment of specific performance
indicated that, even after it was undeniable that Land-
mark had a right to purchase the property, the defen-
dants were still taking any step they could to thwart
the deal. The jury could infer through this and the defen-
dants’ other conduct that the defendants acted to pur-
posefully interfere with Landmark’s contractual rights.
Although the trial court may not have drawn such an
inference, ‘‘[o]nce drawn by the jury . . . that infer-
ence [was] more than sufficient to support a finding
that the defendant acted in reckless indifference of
[Landmark’s] rights.’’ Harris v. Bradley Memorial Hos-
pital & Health Center, Inc., supra, 296 Conn. 348.
III
Finally, we turn to Landmark’s claim that the trial
court improperly directed judgment in the defendants’
favor on its count alleging a violation of CUTPA. In
granting the defendants’ motion for judgment notwith-
standing the verdict on this count, the trial court consid-
ered individually each of the defendants’ acts on which
Landmark relied in support of this claim and concluded
that none of them was ‘‘immoral, unethical, or unscru-
pulous,’’ and further concluded that Landmark did not
establish a causal connection between the defendants’
actions and Landmark’s alleged losses so as to establish
that it suffered an ‘‘ascertainable loss.’’ Landmark chal-
lenges these conclusions and contends that the same
evidence that supports its claim of tortious interference
also shows that the defendants violated CUTPA. We
agree.
‘‘[Section] 42-110b (a) provides that [n]o person shall
engage in unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade
or commerce. . . . [I]n determining whether a practice
violates CUTPA we have adopted the criteria set out in
the cigarette rule by the [F]ederal [T]rade [C]ommission
for determining when a practice is unfair: (1) [w]hether
the practice, without necessarily having been pre-
viously considered unlawful, offends public policy as
it has been established by statutes, the common law,
or otherwise—in other words, it is within at least the
penumbra of some common law, statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3)
whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. . . . In order to enforce this prohibition,
CUTPA provides a private cause of action to [a]ny per-
son who suffers any ascertainable loss of money . . .
as a result of the use or employment of a [prohibited]
method, act or practice . . . .’’ (Internal quotation
marks omitted.) Ulbrich v. Groth, supra, 310 Conn. 409–
10. ‘‘Because CUTPA is a self-avowed ‘remedial’ mea-
sure, General Statutes § 42-110b (d), it is construed
liberally in an effort to effectuate its public policy
goals.’’ Sportsmen’s Boating Corp. v. Hensley, 192
Conn. 747, 756, 474 A.2d 780 (1984).
This court has recognized that, although ‘‘[c]onduct
that might be actionable under CUTPA may not rise to
a level sufficient to invoke tort liability . . . [t]he
reverse of that proposition . . . is seldom true.’’ Id.
Indeed, we have noted that ‘‘it is difficult to conceive
of a situation where tortious interference would be
found but a CUTPA violation would not.’’ Id., 757. More-
over, ‘‘[w]hether a practice is unfair and thus violates
CUTPA is an issue of fact,’’ to which we must afford our
traditional deference. Willow Springs Condominium
Assn., Inc. v. Seventh BRT Development Corp., 245
Conn. 1, 43, 717 A.2d 77 (1998).
In the present case, the jury was instructed to find
that the defendants’ conduct was in furtherance of trade
or commerce, so the only issues before the jury were (1)
whether the defendants’ conduct constituted an unfair
trade practice, and (2) whether Landmark suffered any
ascertainable loss. We agree with Landmark that it pre-
sented sufficient evidence to satisfy both of these ele-
ments and that the trial court therefore improperly
rendered judgment in favor of the defendants.
With respect to the first question, that is, whether
the defendants’ conduct constituted an unfair trade
practice, Landmark argues that the defendants’ ‘‘overall
scheme to wrest the property from [Landmark] . . .
[constitutes] immoral, unethical, oppressive, or unscru-
pulous’’ conduct under the second prong of the cigarette
rule. As we previously explained, the jury reasonably
could have found that the defendants conduct, includ-
ing, inter alia, the economic pressure exerted through
the Calco-Chung contracts, was immoral, unethical,
oppressive or unscrupulous. The trial court acted
improperly when, rather than considering what infer-
ences could have been drawn by the jury from the
totality of the defendants’ conduct, it parsed Land-
mark’s allegations and concluded that each of the defen-
dants’ acts did not meet the standard necessary to prove
a violation of CUTPA. In rendering judgment in favor
of the defendants, the court commandeered the jury’s
role as fact finder.
We also agree with Landmark that it presented suffi-
cient evidence from which the jury could have found
that Landmark sustained an ‘‘ascertainable loss’’ as a
result of the defendants’ conduct. ‘‘An ascertainable
loss is a loss that is capable of being discovered,
observed or established. . . . The term loss necessar-
ily encompasses a broader meaning than the term dam-
age, and has been held synonymous with deprivation,
detriment and injury. . . . To establish an ascertain-
able loss, a plaintiff is not required to prove actual
damages of a specific dollar amount. . . . [A] loss is
ascertainable if it is measurable even though the precise
amount of the loss is not known.’’ (Citations omitted;
internal quotation marks omitted.) Artie’s Auto Body,
Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947
A.2d 320 (2008).
‘‘A plaintiff also must prove that the ascertainable
loss was caused by, or a result of, the prohibited act.
General Statutes § 42-110g (a) . . . . When plaintiffs
seek money damages, the language as a result of in
§ 42-110g (a) requires a showing that the prohibited act
was the proximate cause of a harm to the plaintiff. . . .
[P]roximate cause is [a]n actual cause that is a substan-
tial factor in the resulting harm . . . . The question to
be asked in ascertaining whether proximate cause
exists is whether the harm which occurred was of the
same general nature as the foreseeable risk created by
the defendant’s act.’’ (Citation omitted; internal quota-
tion marks omitted.) Artie’s Auto Body, Inc. v. Hartford
Fire Ins. Co., supra, 287 Conn. 218.
For the same reasons set forth in part I B of this
opinion, in which we concluded that Landmark pre-
sented sufficient evidence that it suffered ‘‘actual loss’’
to sustain its claim of tortious interference, we also
conclude that the jury reasonably could have found
that Landmark suffered an ‘‘ascertainable loss’’ under
CUTPA. Although Landmark had not yet satisfied the
contingencies in the Landmark-Chung contract, the jury
reasonably could have found that the defendants’
actions were the proximate cause of Landmark’s loss,
i.e., its inability to profit from the development of the
property. The trial court’s conclusion to the contrary
was improper.
The judgment is reversed and the case is remanded
with direction to render judgment for the plaintiff in
accordance with the jury’s verdict and for a hearing on
the award of punitive damages.
In this opinion ROGERS, C. J., and PALMER and
EVELEIGH, Js., concurred.
1
We refer to the defendants individually as Calco and Senese, and, collec-
tively as the defendants. Ralph Calabrese, Chung, LLC’s real estate broker,
and his agency, R. Calabrese Agency, LLC, were also named as defendants,
but Landmark withdrew its complaint against them prior to trial.
2
Landmark appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
Subsequent to the events of this case, the department merged into a
new agency, the Department of Energy and Environmental Protection. See
Public Acts 2011, No. 11-80, §§ 1, 55.
4
The Landmark-Chung contract set a purchase price of $2.25 million with
a deposit of $100,000, and was contingent on Landmark receiving approval
for a site plan to include a minimum of 60,500 square feet of retail space;
Calco’s first offer was for a purchase price of $2 million with a $100,000
deposit, and was contingent on Calco receiving approval for a site plan to
include a minimum of 60,000 square feet of retail space.
5
The jury also found that Landmark should be entitled to punitive damages
under CUTPA, but, because the issue of punitive damages under CUTPA is
reserved to the sound discretion of the trial court, and not the jury; Ulbrich
v. Groth, 310 Conn. 375, 450, 78 A.3d 76 (2013); this is a question that the
court must consider in the first instance on remand.
6
Landmark also argues that the trial court should not have reached this
issue in the first instance because it was not raised by the defendants.
Although we have serious reservations as to whether the defendants properly
raised this issue before the trial court—notably, they did not request that
the court instruct the jury that it could only consider evidence occurring
prior to October 27, 2006—we nevertheless consider this question insofar
as it relates to what conduct may properly be considered as part of a cause
of action for tortious interference.
7
Landmark also argues in the alternative, first, that the operative breach
of the Landmark-Chung contract was in March, 2007, when the Calco-Chung
contracts were executed, or, second, that if the Landmark-Chung contract
was terminated as of the date of Chung, LLC’s repudiation, then we should
also consider evidence of the defendants’ conduct occurring in 2011, after
the contract was ‘‘ ‘revived’ ’’ when the Appellate Court affirmed the trial
court’s judgment of specific performance. Because we conclude that the
contract was not terminated as of the date of the repudiation, we need not
consider these arguments.
8
Cf. Yaffe v. Glen Falls Indemnity Co., 115 Conn. 375, 378, 161 A. 521
(1932) (‘‘Renunciation of an executory promise requires two things: On the
part of the promisor a clear indication of a repudiation of his obligation
under the contract, and on the part of the promisee an acceptance of that
renunciation. The contract remains a subsisting one until the parties have
mutually elected to treat it otherwise, and have given unmistakable evi-
dence of such an election.’’ [Emphasis added; internal quotation marks
omitted.]).
9
We are not persuaded by the defendants’ reliance on Crown Equipment
Corp. v. Toyota Material Handling, U.S.A., Inc., 202 Fed. Appx. 108 (6th
Cir. 2006), in support of their argument that the jury could not consider
evidence of the defendants’ conduct occurring after Chung, LLC’s repudia-
tion of the contract. In that case, the court noted that, under Ohio law, a
cause of action for tortious interference requires, inter alia, that ‘‘the defen-
dant knew of the contract’’ and that ‘‘the defendant intentionally procured
the breach of the contract . . . .’’ Id., 111. The court then found that the
defendant did not intentionally procure the breach of the plaintiff’s contract
because the defendant did not know that its conduct may interfere with
performance of the contract. Id., 112–13. More importantly, the plaintiff in
that case elected to terminate its contractual relations with the breaching
party upon learning of the breach; id., 110; so it could not be argued that
there was any continuing contractual relationship with which the defendants
could interfere. Here, however, the defendants did know that Landmark
had a contract for the purchase of the property and that Landmark sought
to enforce that contract through the specific performance action.
Furthermore, the defendants’ reliance on New York cases that conclude
that tortious interference is ‘‘not a continuing tort’’ for purposes of extending
the statute of limitations; see, e.g., Spinap Corp. v. Cafagno, 302 A.D.
2d 588, 756 N.Y.S.2d 86 (2003); is also unavailing because the defendants
in the present case failed to pursue any claim that Landmark’s cause of
action was barred by the statute of limitations.
10
Although the Calco purchase and sale agreement offered a lower pur-
chase price, because it was an ‘‘as is’’ contract, the jury reasonably could
have found that the Calco offer was superior to Landmark’s—it promised
a quick deal, and, for the insolvent Chung, ensured that he would be paid
from the sale immediately, rather than having to place any of the proceeds
of the sale in escrow while waiting for the property to be remediated.
11
The trial court also concluded that Landmark’s claim of actual loss
failed because Landmark failed to prove that it mitigated its damages. We
agree with Landmark, however, that the trial court improperly raised this
issue sua sponte. Although a plaintiff does have a duty to make reasonable
efforts to mitigate its damages, ‘‘[w]hat constitutes a reasonable effort under
the circumstances of a particular case is a question of fact for the trier’’;
(internal quotation marks omitted) Vespoli v. Pagliarulo, 212 Conn. 1, 3,
560 A.2d 980 (1989); and ‘‘[t]he burden of proving that the injured party
could have avoided some or all of his or her damages . . . rests on the party
accused of the tortious act.’’ (Internal quotation marks omitted.) Preston v.
Keith, 217 Conn. 12, 21, 584 A.2d 439 (1991). Because the defendants never
raised this issue and the jury was not instructed to consider it, it was
improper for the court to raise it, sua sponte, after the jury had already
returned its verdict.
12
We are unpersuaded by the defendants’ reliance on Bridgeport Harbour
Place I, LLC v. Ganim, 131 Conn. App. 99, 30 A.3d 703 (2011), in support
of their argument that Landmark failed to prove that it suffered actual loss.
In that case, the Appellate Court concluded that a plaintiff was not entitled
to present evidence of lost profits on a claim of tortious interference because
any assessment of those profits was too speculative where the plaintiff and
the seller had not yet entered into a contract to convey certain property that
the plaintiff was to eventually develop. Id., 118. The preliminary agreement
between the parties ‘‘did not provide for the construction of the project’’
but rather merely required that the defendant ‘‘engage in good faith negotia-
tions to reach an agreement’’ regarding the cost, plans, and specifications
of the construction. (Internal quotation marks omitted.) Id. That is not
this case.
13
Although the parties characterize the trial court’s decision as concluding
that Kane’s testimony was inadmissible, we disagree with this characteriza-
tion. It is apparent that the court did not conclude that Kane’s methodologies
were unsound, so as to preclude admission of his testimony, but rather
concluded that the jury could not have found Kane’s testimony credible in
light of the evidence. See, e.g., State v. Porter, 241 Conn. 57, 83, 698 A.2d
739 (1997) (‘‘[o]nce the methodology underlying an expert conclusion has
been sufficiently established, the mere fact that controversy . . . surrounds
[the expert’s] conclusion goes only to the weight, and not to the admissibility,
of such testimony’’), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed.
2d 645 (1998).
14
The defendants argue that, as a matter of law, Landmark was not entitled
to pursue the contingencies in the Landmark-Chung contract because when
the Appellate Court affirmed the trial court’s judgment of specific perfor-
mance, it characterized that judgment as meaning that ‘‘Landmark should
‘take advantage of the contract terms’ to either terminate the agreement or
close immediately on the property.’’ Landmark Investment Group, LLC v.
Chung Family Realty Partnership, LLC, supra, 125 Conn. App. 696. We
disagree and note that the trial court’s memorandum of decision in that
case stated clearly: ‘‘Landmark is entitled to proceed under the terms of
the original contract or [to] terminate at any point . . . .’’ (Emphasis
added.) Landmark Investment Group, LLC v. Chung Family Realty Part-
nership, LLC, Superior Court, judicial district of New Britain, Docket No.
CV-075003201-S (August 19, 2009). The decision of the Appellate Court
indicates that it found no error in the trial court’s judgment granting specific
performance, and, therefore, affirmed that judgment in its entirety; Land-
mark Investment Group, LLC v. Chung Family Realty Partnership, LLC,
supra, 125 Conn. App. 708; and we do not believe that the Appellate Court
sought to alter the trial court’s judgment sub silentio. See Plasticrete Block &
Supply Corp. v. Commissioner of Revenue Services, 216 Conn. 17, 24, 579
A.2d 20 (1990) (Appellate Court may only reverse or modify decision of trial
court if it determines that factual findings are clearly erroneous or that court
made legal error). Although in support of their argument, the defendants rely
on the trial court’s statement that ‘‘any conditions of the contract that had
as yet not been performed by Landmark are excused by Chung, LLC’s
repudiation of the contract’’; (emphasis added) Landmark Investment
Group., LLC v. Chung Family Realty Partnership, LLC, supra, Superior
Court, Docket No. CV-075003201-S; it is clear that this statement meant that,
had Landmark failed to perform any of the conditions under the contract
prior to the order of specific performance, any such failure was excused
by Chung, LLC’s repudiation.
15
Although Landmark contends that this issue was not properly before
the trial court because the defendants did not raise it in their motion for
judgment notwithstanding the verdict, we nevertheless consider it because
it is an issue that will likely arise on remand. See State v. Tabone, 292 Conn.
417, 431, 973 A.2d 74 (2009) (addressing issue likely to arise on remand).