307 White Street Realty, LLC v. Beaver Brook Group, LLC ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
307 WHITE STREET REALTY, LLC v.
BEAVER BROOK GROUP, LLC
(AC 44740)
Prescott, Suarez and Clark, Js.
Syllabus
The plaintiff sought, inter alia, specific performance of an option to purchase
certain real property that it had been leasing from the defendant and
to recover damages for unjust enrichment. The option to purchase clause
was contained in the parties’ commercial lease agreement. After the
plaintiff filed its complaint, the court granted multiple continuances
while the parties engaged in settlement negotiations, during which time
the parties entered into a purchase and sale agreement for the property.
Thereafter, the defendant filed an answer and special defense, namely,
that the purchase and sale agreement superseded the option to purchase
in the lease agreement and rendered the action moot. Eight days prior to
trial, the defendant moved to dismiss the action, reiterating the mootness
argument made in its special defense. Specifically, the defendant argued
that the action was moot because it sought the interpretation and
enforcement of a lease option that was no longer in effect, depriving
the court of subject matter jurisdiction. The plaintiff opposed the motion
to dismiss, arguing that the purchase and sale agreement was an execu-
tory accord, which was executed as part of the parties’ efforts to settle
the underlying litigation and which was intended to have no legal effect
unless and until the sale actually occurred. Following a hearing, which
was limited to the arguments of counsel, the court granted the defend-
ant’s motion to dismiss, concluding that it lacked subject matter jurisdic-
tion because, although the allegations in the complaint contemplated
an action under the option to purchase clause of the lease agreement,
the purchase and sale agreement was the controlling contract for the sale
of the property. From the judgment of dismissal, the plaintiff appealed
to this court. Held:
1. The trial court improperly granted the defendant’s motion to dismiss as
that court improperly determined that the defendant’s motion to dismiss,
which was premised on the argument that the purchase option had been
superseded and rendered inoperative by the terms of the purchase and
sale agreement, implicated mootness and, therefore, subject matter juris-
diction: the defendant’s argument was best construed as a legal defense
to the plaintiff’s allegations, as the defendant itself recognized when it
filed its answer, the defendant, as the party raising the special defense,
had the burden of proving the facts alleged therein, namely, the existence
of the purchase and sale agreement and its implications relative to the
merits of the underlying action when it filed its special defense, and
the trial court, by adjudicating the special defense by way of a motion
to dismiss, impermissibly shifted the burden of proof from the defendant
to the plaintiff; moreover, in its motion to dismiss, the defendant was
making a factual and legal argument regarding a change in circumstances
that occurred after the plaintiff filed its complaint, premised on the
parties’ intent in executing the purchase and sale agreement, as to why
the plaintiff could not succeed on the merits of its complaint, when the
proper inquiry with regard to mootness was whether that change would
prevent the court from granting any and all practical relief, regardless
of the likelihood that the proponent is able to prevail on the merits;
accordingly, this court reversed the judgment and remanded the case
for further proceedings.
2. Even if this court were to conclude that the defendant’s motion to dismiss
implicated mootness and the trial court’s subject matter jurisdiction,
the trial court abused its discretion by failing to hold an evidentiary
hearing before granting the motion: although it is within the trial court’s
discretion to choose when to address jurisdictional issues, be it at the
time they arise, after discovery or after a full trial on the merits, it is
often prudent to defer action on a motion to dismiss raising issues that
are interrelated or inextricably intertwined with the merits of a dispute,
particularly in cases involving the motives and purposes of contracting
parties; in the present case, the trial court acknowledged that the issues
raised in the complaint were intertwined with and dependent on the
interpretation of the purchase agreement and the intent of the parties,
as expressed in their agreements, the court had already scheduled the
trial when the motion to dismiss was filed and had the discretion to
postpone consideration of the mootness issue until after the trial was
complete, and, having decided to resolve factual disputes at the motion
stage, in particular with regard to the parties’ intent and how the pur-
chase and sale agreement should be construed in the context of the
ongoing settlement negotiations of the parties, the court was obligated,
at the very least, to hold an evidentiary hearing with respect to the
disputed jurisdictional facts.
3. The trial court improperly determined that the parties’ execution of the
purchase and sale agreement rendered the underlying action moot in
its entirety: even assuming that the defendant’s motion to dismiss impli-
cated mootness and that the lease option no longer had an operative
legal effect with regard to the parties’ sale of the property, such a
determination would have no bearing on the allegations that the defend-
ant was unjustly enriched by the plaintiff’s continuing to honor its obliga-
tions under the lease, including by continuing to pay rent, even though
it did not include any provision requiring the plaintiff to do so; moreover,
the court failed to discuss the unjust enrichment allegations and whether
it could provide the plaintiff with practical relief even if the purchase
and sale agreement superseded the lease agreement, and, at a minimum,
it should have denied the motion to dismiss with respect to the unjust
enrichment claim.
Argued September 14—officially released November 29, 2022
Procedural History
Action to recover damages for, inter alia, unjust
enrichment, and for other relief, brought to the Superior
Court in the judicial district of Danbury, where the
court, Brazzel-Massaro, J., granted the defendant’s
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court. Reversed;
further proceedings.
Dana M. Hrelic, with whom were Timothy G. Ronan
and Meagan A. Cauda, and, on the brief, Johanna S.
Katz, for the appellant (plaintiff).
Alexander Copp, with whom was Neil R. Marcus, for
the appellee (defendant).
Opinion
PRESCOTT, J. The present appeal arises out of an
action brought by the plaintiff lessee, 307 White Street
Realty, LLC, against the defendant lessor, Beaver Brook
Group, LLC, to enforce an option to purchase clause
in the parties’ commercial lease (lease option), which
included certain concomitant contractual and statutory
obligations related to the Hazardous Waste Establish-
ment Transfer Act, General Statutes § 22a-134 et seq.
(Transfer Act). The plaintiff appeals from the judgment
of the trial court granting the defendant’s motion to
dismiss the present action as moot because, after the
plaintiff commenced it, the parties executed a purchase
and sale agreement regarding the leased property that
purportedly supersedes the lease option with respect
to the sale of the property such that the court no longer
can afford any practical relief to the plaintiff by adjudi-
cating the underlying action. The plaintiff claims on
appeal that the court improperly (1) determined that
the defendant’s motion to dismiss implicated the court’s
subject matter jurisdiction, (2) failed to hold an eviden-
tiary hearing necessary to resolve disputed material
facts, and (3) concluded that the execution of the pur-
chase and sale agreement rendered the plaintiff’s action
moot in its entirety. For the reasons that follow, we
agree with the plaintiff that the court improperly
granted the motion to dismiss, and, accordingly, we
reverse the judgment of the court and remand for fur-
ther proceedings.
The following facts, as alleged in the complaint or
evidenced as undisputed in the record, and procedural
history are relevant to our resolution of this appeal.
The plaintiff is an affiliate of Winter Brothers Waste
Systems (Winter Bros.), which operates a waste and
recycling business in Long Island, New York. The
defendant is the owner of commercial property located
at 307 White Street in Danbury.
In July, 2011, the defendant leased the 307 White
Street property to WWSCT, LLC, another affiliate of
Winter Bros. The lease, which was modified by the
parties in 2013, contains a detailed lease option that,
inter alia, grants the lessee the right to purchase the
leased property for $7,250,000. The lease option also
contains language addressing obligations of the parties
to the contract that could arise pursuant to the Transfer
Act if the lease option were exercised.1 In November,
2013, WWSCT, LLC, assigned its interest in the lease
to Winter Bros. Realty Holdings I, LLC. Thereafter, in
October, 2017, Winter Bros. Realty Holdings I, LLC,
assigned its rights under the lease to the plaintiff.
On June 28, 2016, prior to assigning the lease to the
plaintiff, Winter Bros. Realty Holdings I, LLC, had pro-
vided the defendant with written notice that it was
exercising its right to purchase the property in accord-
ance with the lease option. Prior to receiving this option
notice, however, the defendant, through counsel, had
sent a letter to Winter Bros. Realty Holdings I, LLC, in
which it disputed whether the lease option remained
in effect. Moreover, after Winter Bros. Realty Holdings
I, LLC, exercised the lease option, the defendant, as
alleged in the complaint, ‘‘periodically disputed the
effectiveness of the exercise of the [lease option] . . .
and, by extension, the viability of the [lease option]
itself.’’ Although Winter Bros. Realty Holdings I, LLC,
and, later, the plaintiff as its assignee, were ready, will-
ing, and able to proceed with the purchase in accord-
ance with the lease option, the defendant ignored the
plaintiff’s demands to acknowledge its obligations
under the lease option, including duties it may have
had under the Transfer Act vis-à-vis remediation of
the property.2
The plaintiff commenced the present action against
the defendant in September, 2018. The complaint con-
tains three counts. Count one sounds in both declara-
tory judgment and unjust enrichment.3 With respect to
the former, the plaintiff seeks a declaration that, ‘‘since
March of 2017, by virtue of the exercise of the [lease
option], [1] the lease is and has been an executory
contract for purchase and sale of the property, [2] [the
plaintiff] is a vendee under that contract, and [3] the
obligations of [the plaintiff] as tenant under the lease,
including, without limitation, the obligation to pay rent,
were (and remain) extinguished.’’ With respect to unjust
enrichment, the plaintiff alleges that, although the lease
does not include any provision requiring the plaintiff
to continue to pay rent after the lease option is exer-
cised, the plaintiff has continued to pay rent and to
perform other responsibilities under the lease, and,
therefore, the defendant has been ‘‘unjustly enriched
by receiving and retaining a benefit to which it is not
legally entitled.’’ As to the relief sought with respect to
count one, the plaintiff, in addition to seeking a declara-
tion that the defendant has been unjustly enriched, asks
for restitution of all rents paid since March, 2017, and
‘‘the value of other actions performed by [the plaintiff]
or its assignor since March of 2017 that fall within the
lease obligations of the tenant.’’
Count two also seeks a declaratory judgment. Specifi-
cally, the plaintiff asks for a declaration that (1) the
defendant has taken actions that amounted to an antici-
patory repudiation of the lease option, (2) the plaintiff
properly and timely executed the lease option, (3) the
lease option remains in full force and effect, and (4)
the defendant was obligated to transfer title and satisfy
its Transfer Act obligations as provided for in the
lease option.
Finally, count three is captioned ‘‘specific perfor-
mance.’’ Specific performance is a remedy, not an inde-
pendent cause of action.4 Nonetheless, we construe
count three, which incorporates by reference allega-
tions regarding the defendant’s repudiation of the lease
option, as asserting a cause of action for anticipatory
breach of contract for which the plaintiff seeks the
equitable remedy of specific performance.
Early in the proceedings before the trial court, the
parties sought and received multiple continuances of
status conferences and other pretrial hearings, indicat-
ing to the court that the parties were engaged in settle-
ment negotiations. In one such continuance, the plain-
tiff stated that the parties ‘‘hope to conclude a
settlement agreement that contemplates closing on or
about June 28, 2019.’’ In a later request for continuance,
the defendant similarly asserted that the parties were
‘‘close to settlement’’ and needed additional time ‘‘to
finalize same.’’
On February 25, 2020, the defendant filed an answer
and special defense to the complaint. In its special
defense, the defendant alleged that the parties, during
the period of continuances arising out of the parties’
apparent settlement negotiations, had entered into a
purchase and sale agreement on or about March 29,
2019, that required the plaintiff to purchase and the
defendant to sell the leased property for $7,250,000.
Among the differences between the purchase and sale
agreement and the lease option were changes to the
parties’ respective Transfer Act obligations. The closing
of the sale was supposed to have occurred on June 28,
2019, and, according to the defendant, it ‘‘was ready,
willing, and able to convey title to the plaintiff, pursuant
to the [purchase and sale agreement].’’ The defendant
alleged, however, that ‘‘the plaintiff has refused to
attend a closing of title and has failed to proffer the
balance of the purchase price due and owing under the
contract and has been in default thereof.’’5 The defend-
ant also alleged in its special defense that the purchase
and sale agreement ‘‘supersedes the [lease option] and
renders the allegations of the plaintiff’s complaint
moot.’’
Sometime later, on November 20, 2020, the court
issued notice that it had scheduled a remote video court
trial to commence on January 27, 2021.6 On January 19,
2021, only eight days prior to the start of the trial, the
defendant filed the motion to dismiss that is the subject
of the present appeal and a memorandum in support
of the motion. The defendant argued that the court
should dismiss the present action as moot for the same
reason it had asserted in its special defense. Namely,
it argued that ‘‘after this action was commenced . . .
the plaintiff and the defendant entered into a purchase
and sale agreement . . . which replaces and super-
sedes the option to purchase in the lease. . . . Because
the instant action seeks interpretation and enforcement
of a lease option that is no longer of any force or effect,
the instant action is moot, thereby depriving [the court]
of subject matter jurisdiction.’’ Much of the defendant’s
argument relied on a boilerplate merger clause in the
purchase and sale agreement that stated that ‘‘[t]his
[a]greement embodies the entire agreement between
the parties and supersedes all prior agreements and
understandings relating to the [p]roperty.’’
The following day, January 20, 2021, the plaintiff
sought a continuance of the trial date to April 27, 2021,
explaining that it needed ‘‘time to reorganize its presen-
tation of evidence’’ because its chief trial witness had
passed away on January 5, 2021, and it ‘‘require[d] time
to reply to [the defendant’s] motion to dismiss, which
is based on a 2019 document but filed only one week
before trial.’’ The court granted the continuance to
August 5, 2021, and ordered the plaintiff to respond to
the motion to dismiss by February 26, 2021.
The plaintiff timely filed its memorandum in opposi-
tion to the motion to dismiss. It argued that the purchase
and sale agreement had been negotiated by the parties
as a conditional agreement in an attempt to settle the
present litigation and, thus, should be construed as an
executory accord that never was intended to replace
or supersede the lease or lease option unless and until
a sale was consummated. According to the plaintiff, the
sale of the subject property that was contemplated by
the purchase and sale agreement never occurred, and,
thus, because there was never a satisfaction of the
accord, the lease option remains in full effect. In support
of its argument that the purchase and sale agreement
was a conditional contract that had no impact on the
court’s power to adjudicate the claims under the lease
option, the plaintiff points to language in the purchase
and sale agreement that states that the plaintiff’s obliga-
tions to withdraw the present action and to release its
claims against the defendant expressly were tied to
the closing of the sale of the property, which never
occurred.7 The defendant filed a reply memorandum in
support of the motion to dismiss on March 12, 2021.
The court, Brazzel-Massaro, J., conducted a hearing
on the motion to dismiss on March 15, 2021. The hearing
was limited to the arguments of the parties’ counsel. No
evidence was presented, including evidence concerning
the parties’ competing factual assertions regarding their
intent in executing the purchase and sale agreement.
On May 5, 2021, the court issued a memorandum of
decision granting the motion to dismiss and rendering
a judgment of dismissal. The court first reasoned that
the plaintiff was correct that, by exercising the lease
option, ‘‘the relationship between the parties as land-
lord-tenant transformed into vendor-vendee. However,
once the option was exercised, the lease between the
plaintiff and the defendant was extinguished.’’ The
court then stated that ‘‘[t]he allegations of the complaint
contemplate an action under the option clause of the
lease which no longer exists and bears no legal effect
on the purchase and sale of the property. Once the
parties executed the purchase agreement, any issues
regarding the purchase and sale of the property must
be viewed through the terms of that contract instead
of the option clause under the lease. The plaintiff com-
menced the present action in order to enforce the
option. However, the purchase agreement is an enforce-
ment of the option because it expresses the terms and
conditions that both parties need to meet in order to
consummate the purchase and sale of the property.
. . . The plaintiff’s argument that the purchase
agreement is an executory accord without satisfaction
is misguided. When the parties executed the purchase
agreement, a new bilateral contract was formed and
the exchange of mutual promises between the parties
was enough to properly form the contract. Moreover,
both parties acknowledge the existence of the executed
purchase agreement and both parties express a willing-
ness to fulfill the obligations of the purchase agreement
by signing the agreement. Furthermore, the plaintiff
did not allege in the complaint or attach any evidence
demonstrating the purchase agreement was merely part
of ongoing negotiations. Therefore, the purchase
agreement is the controlling contract for the purchase
and sale of the property.’’ (Citation omitted.)
The court continued: ‘‘Although ordinarily the ques-
tion of contract interpretation being question of the
parties’ intent, is a question of fact . . . where there
is definitive contract language, the determination of
what the parties intended by their contractual commit-
ments is a question of law. . . . With definitive con-
tract terms available in the purchase agreement, the
court can determine what the parties intended when
executing the agreement, the purchase and sale of the
property. In this case, the parties executed the purchase
agreement on May 23, 2019, after the plaintiff com-
menced the present action. . . . The parties intended
to be legally bound and agreed on the purchase price,
the closing date of June 28, 2019, and the parties’ reme-
dies in the event of default. . . . If the plaintiff seeks
performance in purchase of the property, then the plain-
tiff need only effectuate closing on the property as
stated in the purchase agreement.’’ (Citations omitted;
footnotes omitted; internal quotation marks omitted.)
The court concluded: ‘‘Construing the allegations in the
complaint in the light most favorable to the plaintiff,
the plaintiff did not allege sufficient facts to withstand
the defendant’s motion to dismiss. The plaintiff’s
claims against the defendant are intertwined with,
and dependent upon, the interpretation of the purchase
agreement. The language of the purchase agreement
indicates the clear intention of the parties to execute
a binding purchase and sale of the property. Therefore,
the court does not have subject matter jurisdiction.’’
(Emphasis added.) This appeal followed.8
The plaintiff claims on appeal that the court improp-
erly granted the defendant’s motion to dismiss because
(1) the motion did not truly implicate the court’s subject
matter jurisdiction but rather sought a summary adjudi-
cation of the defendant’s special defense, (2) the court
failed to hold an evidentiary hearing to resolve disputed
issues of material fact regarding the intent of the parties,
and (3) the parties’ execution of the purchase and sale
agreement did not render the entirety of the underlying
action moot. We address each argument in turn,
although we recognize that the issues raised are some-
what overlapping. Ultimately, we are not persuaded
that the motion to dismiss raised a valid claim of moot-
ness and, thus, agree that the defendant’s motion did
not implicate the court’s subject matter jurisdiction.
Notwithstanding the foregoing, even had the motion
to dismiss properly invoked a challenge to the court’s
jurisdiction, it would have been an abuse of discretion,
under the circumstances of this case, for the court to
grant the motion without the benefit of an evidentiary
hearing or a trial on the merits. Finally, we agree that
the portion of count one of the complaint alleging unjust
enrichment should have survived the motion to dismiss.
In short, we conclude that the court should have denied
the motion to dismiss.
We begin our discussion with general legal principles,
including those governing our review of a court’s grant-
ing of a motion to dismiss pursuant to Practice Book
§ 10-30.9 ‘‘A motion to dismiss tests, inter alia, whether,
on the face of the record, the court is without jurisdic-
tion. . . . [O]ur review of the court’s ultimate legal con-
clusion and resulting [determination] of the motion to
dismiss will be de novo. . . . In undertaking this
review, we are mindful of the well established notion
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged. . . .
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to [Practice
Book § 10-30] may encounter different situations,
depending on the status of the record in the case. . . .
[L]ack of subject matter jurisdiction may be found in
any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts. . . . [If] a trial court decides a juris-
dictional question raised by a pretrial motion to dismiss
on the basis of the complaint alone, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . other types of
undisputed evidence . . . and/or public records of
which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein.
. . .
‘‘Finally, [if] a jurisdictional determination is depen-
dent on the resolution of a critical factual dispute, it
cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . [If] the jurisdic-
tional facts are intertwined with the merits of the case,
the court may in its discretion choose to postpone
resolution of the jurisdictional question until the par-
ties complete further discovery or, if necessary, a full
trial on the merits has occurred. . . . In that situation,
[a]n evidentiary hearing is necessary because a court
cannot make a critical factual [jurisdictional] finding
based on memoranda and documents submitted by the
parties.’’ (Citations omitted; emphasis altered; internal
quotation marks omitted.) Cuozzo v. Orange, 315 Conn.
606, 614–17, 109 A.3d 903 (2015).
Because mootness implicates a court’s subject matter
jurisdiction, it is properly raised by way of a motion to
dismiss. We the People of Connecticut, Inc. v. Malloy,
150 Conn. App. 576, 581 n.3, 92 A.3d 961 (2014). ‘‘Moot-
ness presents a circumstance wherein the issue before
the court has been resolved or had lost its significance
because of a change in the condition of affairs between
the parties. . . . A case becomes moot [if] due to
intervening circumstances a controversy between the
parties no longer exists.’’ (Citation omitted; internal
quotation marks omitted.) Id., 581. ‘‘The test for
determining mootness is whether a judgment, if ren-
dered, would have any practical legal effect upon an
existing controversy. Thus, the central question in a
mootness problem is whether a change in the circum-
stances that prevailed at the beginning of the litigation
has forestalled the prospect for meaningful, practical,
or effective relief.’’ (Internal quotation marks omitted.)
Statewide Grievance Committee v. Burton, 282 Conn.
1, 13, 917 A.2d 966 (2007).
I
The plaintiff first claims that the court improperly
determined that the defendant’s motion to dismiss
implicated the court’s subject matter jurisdiction over
the action. According to the plaintiff, rather than raising
any colorable issue of subject matter jurisdiction, the
motion to dismiss effectively sought summary adjudica-
tion of the defendant’s special defense, which the plain-
tiff construes as asserting that the purchase and sale
agreement was a novation of the lease option.10 The
plaintiff further argues that by adjudicating the special
defense by way of a motion to dismiss, the court neces-
sarily and impermissibly shifted the burden of proof
from the defendant to the plaintiff. The defendant sug-
gests that the plaintiff failed to preserve these argu-
ments by raising them before the trial court. Alterna-
tively, it argues that, even if properly preserved, the
plaintiff’s claim fails because the motion to dismiss
raises an issue of mootness that implicates the court’s
subject matter jurisdiction and is a proper basis for a
motion to dismiss. We are persuaded by the plain-
tiff’s arguments.
As a preliminary matter, we briefly address the
defendant’s argument that the plaintiff’s claim is not
properly preserved for our review. It is axiomatic that
‘‘[a]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided
by the trial court.’’ (Internal quotation marks omitted.)
White v. Mazda Motor of America, Inc., 313 Conn. 610,
619–20, 99 A.3d 1079 (2014). A careful review of the
record, including the hearing on the motion to dismiss,
convinces us that the gravamen of the argument
advanced on appeal was raised with sufficient clarity
before the court to provide both the court and the
defendant with notice of the same. The plaintiff argued
in its opposition to the motion to dismiss that the pur-
chase and sale agreement did not extinguish or super-
sede the lease option and thus did not deprive the court
of subject matter jurisdiction. The only ground raised
in the motion to dismiss implicating the court’s subject
matter jurisdiction was mootness. Thus, whether the
defendant’s motion properly invoked the doctrine of
mootness is properly before us for review.
We are unconvinced that the defendant’s argument
that the terms of the lease option have been superseded
and rendered inoperative by the terms of the purchase
and sale agreement is one that implicates mootness.
Rather, that argument is best construed—as the defend-
ant itself seemed to initially recognize in its answer to
the complaint—as a legal defense, either in whole or
in part, to the allegations raised in the complaint. In the
present case, the defendant pleaded by way of special
defense the existence of the purchase and sale
agreement and its implications relative to the merits
of the underlying action. By doing so, the defendant
assumed the burden of proof and persuasion not only
regarding the existence of the subsequent purchase and
sale agreement and its terms but also whether the par-
ties actually intended for it to supersede any and all
aspects of the lease option including any obligations
arising thereunder. See AGW Sono Partners, LLC v.
Downtown Soho, LLC, 343 Conn. 309, 323, 273 A.3d 186(2022) (‘‘a party raising a special defense has the burden
of proving the facts alleged therein’’ (internal quotation
marks omitted)). Although the defendant stated without
elaboration in its special defense that it believed that
the purchase and sale agreement superseded the lease
option and thus ‘‘render[ed] the allegations of the plain-
tiff’s complaint moot,’’ it did not file a motion to dismiss
the action at that time or assert that the court lacked
subject matter jurisdiction over the action. Rather, it
waited until the eve of trial.11
Even the most compelling legal or factual argument
that a particular claim or cause of action will fail on
its merits will not support a conclusion that the asserted
claim or cause of action is moot. This is because the
proper inquiry with regard to mootness is not whether
some change in circumstances has occurred after the
claim or cause of action is asserted that forecloses any
chance of success on the merits but, rather, whether
that change would prevent the court from granting any
and all practical relief even assuming that the propo-
nent is able to prevail on the merits, no matter how
unlikely. See Wilcox v. Webster Ins., Inc., 294 Conn.
206, 224–25, 982 A.2d 1053 (2009) (‘‘[w]e can conclude,
however, on the basis of the current state of the record
before us, that the plaintiffs’ claims are not moot
because a determination of the controversy in the plain-
tiffs’ favor could result in practical relief to the plain-
tiffs’’); Washington Mutual Bank v. Coughlin, 168
Conn. App. 278, 287 n.13, 145 A.3d 408 (explaining that
mootness doctrine is not truly implicated by argument
that appeal would be rendered moot if Appellate Court
agreed with appellee on the merits because, ‘‘[i]n
determining whether an appeal is moot, we ordinarily
do not decide the merits of the claims raised; rather,
we ask whether there is any practical relief that could
be granted even assuming that the appellant prevails
on appeal’’ (emphasis altered)), cert. denied, 323 Conn.
939, 151 A.3d 387 (2016).
Here, the defendant asserts that the lease option on
which the action was based has been superseded by
the parties’ subsequent execution of a purchase and
sale agreement regarding the same leased property. In
other words, the defendant is making a factual and legal
argument as to why the plaintiff cannot succeed on the
merits of its complaint. The plaintiff’s position, how-
ever, is that the purchase and sale agreement was exe-
cuted as part of the parties’ efforts to settle the current
litigation and was intended to have no legal effect unless
the sale actually closed. If the plaintiff is correct, then
there remains a possibility that the plaintiff could pre-
vail and obtain practical relief.
We agree with the plaintiff that the motion to dismiss
filed by the defendant did not implicate mootness and,
thus, did not implicate the court’s subject matter juris-
diction. Accordingly, it was not the proper procedural
vehicle to address the true nature and legal effect of
the purchase and sale agreement. On that basis, the
court should have denied the motion to dismiss.
II
The plaintiff next argues, in the alternative, that even
if this court determines that the motion to dismiss prop-
erly raised a claim of mootness thereby implicating the
court’s subject matter jurisdiction, the court neverthe-
less improperly failed to hold an evidentiary hearing to
resolve disputed issues of jurisdictional fact. We agree
with the plaintiff that it was an abuse of discretion for
the court to have decided the issues raised in the motion
to dismiss solely on the basis of the papers and argu-
ments of counsel without the benefit of an eviden-
tiary hearing.
Generally speaking, it often will be prudent to defer
action on a motion to dismiss raising issues that are
interrelated or inextricably intertwined with the merits
of a dispute, particularly in cases involving the motives
and purposes of contracting parties. See Conboy v.
State, 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009);
Anderson v. Bloomfield, 203 Conn. App. 182, 197, 247
A.3d 642 (2021). Our Supreme Court, however, has left
it within the discretion of the court to address jurisdic-
tional issues at the time raised, stating, ‘‘the court may
in its discretion choose to postpone resolution of the
jurisdictional question until the parties complete further
discovery or, if necessary, a full trial on the merits has
occurred.’’ (Emphasis added.) Conboy v. State, supra,
653 n.16. Whether the court properly exercises that
discretion in a given case, however, is not beyond
our review.
‘‘Discretion means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice. . . . The salient inquiry is whether
the court could have reasonably concluded as it did.
. . . It goes without saying that the term abuse of dis-
cretion does not imply a bad motive or wrong purpose
but merely means that the ruling appears to have been
made on untenable grounds. . . . In determining
whether there has been an abuse of discretion, much
depends upon the circumstances of each case.’’ (Inter-
nal quotation marks omitted.) Antonio A. v. Commis-
sioner of Correction, 205 Conn. App. 46, 61–62, 256 A.3d
684, cert. denied, 339 Conn. 909, 261 A.3d 744 (2021).
Here, the court acknowledged in its decision on the
motion to dismiss that the issues raised in the complaint
were ‘‘intertwined with, and dependent upon, the inter-
pretation of the purchase agreement.’’ Whether the par-
ties have a binding agreement for the sale of the subject
property and, if so, whether the operative contract gov-
erning that sale is the lease option, the subsequently
executed purchase and sale agreement, or some combi-
nation thereof requires consideration of the parties’
intent as expressed in their agreements. Thus, resolu-
tion regarding any potential mootness of the action or
claims made therein was intertwined with the merits
of the action. This is further exemplified by the fact
that the defendant originally raised the argument that
the purchase and sale agreement wholly superseded
the lease option such that the plaintiff was not entitled
to judgment on any count of its complaint as a special
defense to the complaint and not as a motion to dismiss.
Even if the motion properly raised a question of moot-
ness, it was within the court’s discretion either to
resolve that question or to postpone consideration of
it until it had conducted an evidentiary hearing or a
trial, which in this case already had been scheduled at
the time the motion to dismiss was filed. See footnote
11 of this opinion. Although there is no indication in
the record that either party requested that the court
hold an evidentiary hearing at which they could enter
evidence or call witnesses, the pleadings before the
court nonetheless established that material facts involv-
ing the parties’ true intent and motives remained in
dispute.12 Having decided to resolve factual disputes at
the motion stage, in particular with regard to the parties’
intent and how the purchase and sale agreement should
be construed in the context of the ongoing settlement
negotiations of the parties, the court was obligated, at
the very least, to hold an evidentiary hearing with
respect to these disputed jurisdictional facts.13 Because
a motion to dismiss ordinarily is limited to resolving
issues of jurisdiction rather than the merits of the
action, we agree that the court improperly granted the
motion to dismiss without first conducting an eviden-
tiary hearing.
Our conclusion finds support in this court’s decision
in Air-Care N.O. Nelson Co. v. Patchet, 5 Conn. App.
203, 205–207, 497 A.2d 771 (1985). In that case, in which
the parties similarly reached a subsequent agreement
attempting to settle a contract dispute; id., 203; this
court held that the trial court improperly dismissed the
action without holding an evidentiary hearing necessary
‘‘to make an evidentiary determination of the intention
of the parties.’’ Id., 205. We explained that whether a
settlement agreement constitutes an executory accord
or a substitute agreement turns upon the intent of the
parties and that ‘‘[i]t is frequently difficult to determine
as a matter of fact whether the parties agreed that the
settlement agreement itself constituted satisfaction of
the original cause of action, or whether the performance
of the agreement was intended to be the satisfaction.’’
(Emphasis omitted.) Id. This court concluded: ‘‘The
intent of the parties to a contract is generally considered
to be a question of fact. . . . Nothing in the record
or transcript of this case indicates that the trial court
received any evidence or considered the question of
whether the parties intended the agreement itself or
the performance of the agreement to constitute satisfac-
tion of the original claim.’’ (Citation omitted.) Id., 206.
In the present case, the trial court, like the trial court
in Air-Care N.O. Nelson Co., rejected the plaintiff’s
assertion that the purchase and sale agreement was
executed as a means to settle the parties’ dispute over
the sale of the property, and that it was only intended
to act as a substitute contract upon performance of the
new agreement, without the benefit of any evidence
regarding the parties’ intent. Like in Air-Care N.O. Nel-
son Co., we are persuaded that an evidentiary hearing
devoted to the question of the parties’ intent in entering
into the purchase and sale agreement would have best
served ‘‘the interests of justice’’ in the present case. See
id. This is particularly true in the present case in which
the motion to dismiss was filed so close to trial. Accord-
ingly, even if the motion to dismiss properly invoked a
challenge to the court’s jurisdiction, the court abused
its discretion, under the circumstances of this case, by
granting the motion without the benefit of an eviden-
tiary hearing or a trial on the merits.
III
Finally, the plaintiff argues that the court improperly
determined that the parties’ execution of the purchase
and sale agreement rendered the underlying action
moot in its entirety. The plaintiff argues that its claims
under the lease option were not moot but that, even if
they were moot, the court still could have awarded it
meaningful relief with respect to its unjust enrichment
cause of action in count one. We agree with the plaintiff
that, at the very least, the court should have denied the
motion to dismiss with respect to the plaintiff’s claim
of unjust enrichment.
As we already have explained in part I of this opinion,
we are not convinced that the defendant’s argument
that the lease option was superseded by the purchase
and sale agreement implicated the mootness doctrine
rather than simply providing a basis for ruling in favor
of the defendant on the merits of the action. Even
assuming that it did implicate mootness, however, and
further assuming that the lease option no longer had
any operative legal effect vis-à-vis the parties’ sale of
the property, such a determination would have no bear-
ing on the plaintiff’s allegations in count one of the
complaint that the defendant was unjustly enriched by
the plaintiff’s continuing to honor its obligations under
the lease, including by continuing to pay rent. At a
minimum, the court should have denied the motion to
dismiss with respect to the unjust enrichment alle-
gations.
As the defendant correctly argues, and the plaintiff
concedes, the purchase and sale agreement provides
that the plaintiff would continue to pay rent to the
defendant under the terms of the lease. That obligation,
however, expressly arises ‘‘from and after the [e]ffective
[d]ate’’ of the purchase and sale agreement, which is
April, 2019. The plaintiff’s claim of unjust enrichment
involves allegations that it made lease payments that
the defendant was not legally entitled to beginning in
March, 2017.
The court failed to discuss the unjust enrichment
allegations and whether it could provide the plaintiff
with practical relief even in the face of a superseding
contract. We agree with the plaintiff that, at the very
least, the court should have denied the motion to dis-
miss with respect to the plaintiff’s claim of unjust
enrichment. In sum, for the reasons provided, we are
convinced that the court improperly granted the defend-
ant’s motion to dismiss.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
The Transfer Act is a state environmental statute that was ‘‘enacted to
protect purchasers of property from being liable for the subsequent discov-
ery of hazardous waste on the property’’ and that ‘‘subjects transferors of
establishments to reporting, investigation and remediation requirements that
depend on the environmental condition of the property being transferred.’’
(Internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc.
v. ATC Partnership, 272 Conn. 14, 40, 861 A.2d. 473 (2004). ‘‘Establishment’’
is a defined term meaning ‘‘any real property at which or any business
operation from which (A) on or after November 19, 1980, there was generated
more than one hundred kilograms of hazardous waste in any one month, (B)
hazardous waste generated at a different location was recycled, reclaimed,
reused, stored, handled, treated, transported or disposed of, (C) the process
of dry cleaning was conducted on or after May 1, 1967, (D) furniture stripping
was conducted on or after May 1, 1967, or (E) a vehicle body repair facility
was located on or after May 1, 1967. . . .’’ General Statutes § 22a-134 (3).
2
The 307 White Street property previously had been identified as con-
taining environmental contamination that required remediation, but the par-
ties do not agree on who is responsible for ongoing remediation and reporting
obligations imposed by the Transfer Act.
3
The defendant never filed a request to revise asking to separate these
causes of action into different counts. See Practice Book § 10-35.
4
‘‘Specific performance is an equitable remedy whereby courts may com-
pel the performance of land sale contracts, and certain other contracts,
pursuant to the principles of equity. . . . Every complaint asking for specific
performance of a contract to convey real estate is addressed to the discretion
of the court, and will not be granted unless the contract is made according
to the requirements of law, and is fair, equitable, reasonable, certain, mutual,
on good consideration, consistent with policy and free from fraud, surprise
or mistake. . . . Even when a valid contract is found, however, there is no
right to specific performance, but rather [t]he granting of specific perfor-
mance of a contract to sell land is a remedy which rests in the broad
discretion of the trial court depending on all of the facts and circumstances
when viewed in light of the settled principles of equity.’’ (Citations omitted;
internal quotation marks omitted.) Battalino v. Van Patten, 100 Conn. App.
155, 159–60, 917 A.2d 595, cert. denied, 282 Conn. 924, 925 A.2d 1102 (2007).
5
Despite these allegations, the defendant did not assert any counterclaim
against the plaintiff on the basis of an alleged breach of the purchase and
sale agreement and seeking specific performance thereof. Further, to the
extent that the defendant believed that the parties had reached an enforce-
able out-of-court settlement, the defendant did not request a hearing pursu-
ant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs,
Inc., 225 Conn. 804, 811–12, 626 A.2d 729 (1993) (Audubon). An Audubon
hearing ‘‘is conducted to decide whether the terms of a settlement agreement
are sufficiently clear and unambiguous so as to be enforceable as a matter
of law.’’ Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 499
n.5, 4 A.3d 288 (2010).
6
The trial date was delayed at the request of the parties. Following a
teleconference with the parties on September 10, 2020, the court issued an
order stating that it was ‘‘prepared to assign a trial date but the parties have
entered into an agreement which requires approval from the [Connecticut
Department of Energy and Environmental Protection (DEEP)]. Counsel have
advised the court that the status of the approval is not known. The court
has ordered counsel to contact the department to determine where the
approval stands. Counsel are to submit a written status report on or before
September 25, 2020, as to the progress with approval from [DEEP] and
the time frame for the approvals required and the time to complete these
obligations pursuant to the Transfer Act to complete the sale. After the
submission of the status [report], the court will determine if the parties
require a trial date or an additional teleconference with the court.’’ The
parties filed the required joint status report on September 25, 2020, and
requested that the court hold a status conference within sixty to ninety
days. The status report indicated as follows: ‘‘In the last three to five months,
the plaintiff’s retained Licensed Environmental Professional and other repre-
sentatives have had numerous phone meetings with representatives of
[DEEP] and the United States Environmental Protection Agency (Region 1)
(EPA), both jointly and separately, respecting approval and/or sign-off on
(i) allowable concentrations in parts per million (ppm) of polychlorinated
biphenyls (PCBs) that can remain on site (both in soils and beneath floors
of structures) and (ii) design of regulatorily appropriate engineering controls
to be installed at the site. That dialogue, and the sharing of additional testing
data, and data analysis, is ongoing. [The parties] are also working to confirm
the acceptance by the EPA and DEEP of [the defendant’s] compliance with
certain notices. . . . The parties project that the time needed to complete
the items mentioned . . . will be sixty to ninety days. . . . The parties
anticipate that time needed to complete transfer and settlement after the
items mentioned . . . are completed will be forty-five to sixty days.’’
7
Each side blames the other for the failure of the parties to consummate
the sale of the subject property as contemplated under the purchase and
sale agreement.
8
In addition to filing this appeal, the plaintiff also filed a timely motion
for reconsideration that raised many of the same arguments it advances on
appeal. The defendant filed an objection on June 7, 2021, and, that same
day, the court issued an order stating that it would hold a hearing on June
21, 2021, to hear argument ‘‘as to whether the court should permit reargument
or reconsideration.’’ On June 21, 2021, however, the court issued orders
marking off the motion and the objection. The court explained that no action
was necessary because an appeal had been filed.
Although not directly at issue in the present appeal, we feel it is important
to reiterate that the filing of an appeal does not stay a trial court’s continuing
authority to adjudicate any properly filed motions to reargue, reconsider or
open the judgment that is the subject of the appeal; see Practice Book § 11-
11; irrespective of the possibility that the trial court’s action on such a
motion potentially could render the appeal moot. See Ahneman v. Ahneman,
243 Conn. 471, 482–84, 706 A.2d 960 (1998). Said another way, although the
filing of an appeal may, in certain instances, result in a stay of actions to
enforce or carry out the judgment on appeal; see Practice Book § 61-11 et
seq.; any such appellate stay does not affect a court’s authority to rule
on motions filed with the trial court, including any Practice Book § 11-
11 motions.
9
Practice Book § 10-30 provides: ‘‘(a) A motion to dismiss shall be used
to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdic-
tion over the person; (3) insufficiency of process; and (4) insufficiency of
service of process.
‘‘(b) Any defendant, wishing to contest the court’s jurisdiction, shall do so
by filing a motion to dismiss within thirty days of the filing of an appearance.
‘‘(c) This motion shall always be filed with a supporting memorandum of
law and, where appropriate, with supporting affidavits as to facts not appar-
ent on the record.’’
10
‘‘Novation may be broadly defined as a substitution of a new contract
or obligation for an old one which is thereby extinguished. . . . Novation
and substitute contract often are used interchangeably to refer to a subse-
quent contract. . . . Our Supreme Court has stated that a novation [usually
refers] to instances in which a new party is introduced into the new contract,
while substitute contract is the designation commonly employed to cover
agreements between the same parties which supersede and discharge prior
contract obligations.’’ (Citations omitted; footnote omitted; internal quota-
tion marks omitted.) Willamette Management Associates, Inc. v. Palczynski,
134 Conn. App. 58, 71–72, 38 A.3d 1212 (2012). Thus, under our Supreme
Court’s definition, the defendant’s special defense asserts the existence of
a substitute contract that would foreclose any enforcement of the original
lease option. Whether the substitute contract was intended by the parties
fully to supersede the lease option, however, is an issue of fact that is
disputed by the parties.
11
If the defendant believed that the plaintiff’s action was moot as asserted,
it could have filed a motion to dismiss at that time rather than answering
the allegations of the complaint. Although mootness implicates justiciability
and the subject matter jurisdiction of the court and certainly can be raised
at any time; Wilcox v. Webster Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053(2009); we note that the defendant waited until the eve of trial to press
adjudication of the purported mootness issue. The defendant’s delay in filing
the motion to dismiss factors into our consideration of whether the court
properly exercised its discretion in choosing not to postpone a final decision
on the motion until after a trial on the clearly intertwined merits of the
action.
12
‘‘Parties may alter any term of an existing contract by entering into a
subsequent contract. . . . The contract as modified becomes a new contract
between the parties. . . . The meaning to be given subsequent agreements
. . . depends on the intention of the parties. As intention is an inference
of fact, the conclusion is not reviewable unless it was one which the trier
could not reasonably make.’’ (Citation omitted; internal quotation marks
omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 189–90, 2 A.3d 873(2010). ‘‘Although ordinarily the question of contract interpretation, being
a question of the parties’ intent, is a question of fact . . . [if] there is
definitive contract language, the determination of what the parties intended
by their . . . commitments is a question of law [over which our review is
plenary]. . . . If the language of [a] contract is susceptible to more than one
reasonable interpretation, [however] the contract is ambiguous.’’ (Internal
quotation marks omitted.) Tomey Realty Co. v. Bozzuto’s, Inc., 168 Conn.
App. 637, 646–47, 147 A.3d 166 (2016).
13
We recognize that prior decisions of this court contain language that
could be construed as contradictory regarding a trial court’s obligation to
hold an evidentiary hearing in the face of disputed jurisdictional facts,
suggesting on the one hand that a trial court must always hold an evidentiary
hearing whenever it determines that resolution of a motion to dismiss turns
on a disputed jurisdictional fact; see Property Asset Management, Inc. v.
Lazarte, 163 Conn. App. 737, 749, 138 A.3d 290 (2016) (‘‘[a] court is required
to hold an evidentiary hearing before adjudicating a motion to dismiss only
if there is a genuine dispute as to some [material] jurisdictional fact’’); and,
on the other hand, declining to find error in a trial court’s decision to rule
on a motion to dismiss without holding an evidentiary hearing because the
parties never requested an evidentiary hearing. See, e.g., Walshon v. Ballon
Stoll Bader & Nadler, P.C., 121 Conn. App. 366, 371, 996 A.2d 1195 (2010)
(‘‘it is the plaintiff’s burden both to request an evidentiary hearing and to
present evidence that establishes disputed factual allegations in support of
an evidentiary hearing, and [if] the plaintiff failed to do either, the court
[may] properly [decide] the motion [to dismiss] on the basis of the pleadings
and affidavits’’ (emphasis added)). In those cases in which we have noted
the failure of a party to request an evidentiary hearing, we inevitably deter-
mined that the party also failed to present evidence that raised a dispute
regarding a fact upon which jurisdiction turned; see, e.g., Priore v. Haig,
196 Conn. App. 675, 686, 230 A.3d 714 (2020), rev’d on other grounds, 344
Conn. 636, 280 A.3d 402 (2022); and thus have concluded that the court
properly could decide the motion on the undisputed facts contained in the
record before it. It remains axiomatic, however, that in a case where the
pleadings and submissions of the parties themselves necessarily raise a
dispute about a fact that is central to the court’s jurisdictional determination,
the court has an independent duty, even in the absence of a parties’ request,
to hold an evidentiary hearing prior to resolving the factual dispute. See
Cuozzo v. Orange, supra, 315 Conn. 616–17 (‘‘a court cannot make a critical
factual [jurisdictional] finding based on memoranda and documents submit-
ted by the parties’’ (internal quotation marks omitted)).