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Date: 09-26-2015

Case Style: Landmark Investment Group, LLC v. CALCO Construction & Development Co

Case Number: SC 19287

Judge: Justice Andrew J. McDonald

Court: Connecticut Supreme Court

Plaintiff's Attorney: Kerry M. Wisser,

Defendant's Attorney: Walter A. Twachtman, Jr

Description: The dispute in the present case has a long and circuitous history, which began more than one decade ago when the plaintiff, Landmark InvestmentGroup,LLC(Landmark),acommercialrealestate developer, entered into a contract to purchase an environmentally contaminated property in the town of Plainville (town) with the hopes of remediating and developingitforcommercialuse.Theselleroftheproperty, 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 purchase the property after it was sold at a foreclosure auction where a company controlled by Senese was the highest bidder. Landmark then brought the present actionagainstthedefendants,allegingtortiousinterference with its contractual relations and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), GeneralStatutes§ 42-110aetseq.Afterthejuryreturned a verdict in favor of Landmark on both counts, the trialcourtgrantedthe defendants’motionforjudgment notwithstanding the verdict and rendered judgment for the defendants. Landmark now appeals from the judgment 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 presented insufficient evidence to support its claims. We agreeand,accordingly,reversethejudgmentofthetrial 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 remediationandatthattimecontainedonlydilapidated buildings.Chung,LLC,whichhadencumberedtheproperty with two purchase money mortgages when it purchased the property several years earlier, listed it for sale after being unable to complete the development. Although Landmark was aware that the property required remediation, Landmark learned, shortly after entering into the contract, that the estimated cost of remediationwassignificantlyhigherthananticipated— approximately $1.3 million. Landmark and Chung, LLC, then supplanted the January contract with a new contract on June 30, 2005, which provided Landmark with greater protections regarding the remediation and development plans for the property (Landmark
Chung contract). The Landmark-Chung contract contained a number of contingencies to account for the uncertainties surrounding the environmental remediation of the property. Notably, the contract required Chung, LLC, within twenty days of the execution of the agreement, to develop a remediation action plan at its expense and file it with the state Department of Environmental Protection (department),3 whose approvalof sucha planis necessary before cleanup can begin on a contaminated property. The Landmark-Chung contract further provided that, once a remediation action plan was approved,Landmark,withtheparticipationofthetown, was to file an application with the Connecticut Brownfields Redevelopment Authority (authority) whichwould,ifsuchapplicationwasapproved,provide funding to assist with the cost of remediating the property. In the absence of such funding, however, the cost of remediation was to fall on Chung, LLC; the contract requiredthatChung,LLC,place theentirenetproceeds fromthesaleoftheproperty,minuscertaindeductions, in escrow pending the completion of the remediation. Theescrowfundsweretobeusedtooffsetanyshortfall between the funding provided by the authority and the total cost of remediation. TheLandmark-Chungcontractalsocontainedcertain contingencies to ensure that Landmark would be able to develop the property for commercial use. Notably, withinninetydaysofthereceiptofthefundingfromthe authority,Landmarkwastoapplyforcertainregulatory approvals, including, inter alia, building permits, wetlands approvals,and trafficapprovals, and,in theevent any such approval was not obtained to Landmark’s satisfaction, Landmark maintained the right to terminate the Landmark-Chung contract. Landmark also was to applyforaloanfromafinancialinstitutiontobesecured 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. Shortlyafterenteringintothecontract,however,relations between Chung, LLC, and Landmark began to unravel. Two months after the Landmark-Chung contract was executed, Chung, LLC, was seeking ‘‘a way out’’ of the deal. Moreover, in spite of Chung, LLC’s agreement to prepare the remediation action plan within twenty days, months passed without its compliancewiththiscontractualobligation.Despitethesignificant delay, Landmark nevertheless undertook efforts to market the property and to develop alternative site plans for development. Meanwhile,unbeknownsttoLandmark,inDecember, 2005, Senese met with Chung, LLC’s real estate broker to discuss the property and began negotiations regarding Calco’s plan to purchase and develop it. Chung,
LLC’s broker informed Senese that the property was under contract, but nevertheless drafted a letter of intent on Calco’s behalf to serve as a backup offer for the purchase of the property, which Senese submitted in January, 2006. This letter of intent contained terms similar to the Landmark-Chung contract,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. ItwasnotuntilAugust,2006,thatLandmarkreceived noticethatthedepartment hadapprovedaremediation action plan, which estimated that the cost of remediation would be only $265,000. Because this estimated cost was significantly lowerthan 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 continuedtounravel,Chung,LLC,andCalcocontinued to discuss the potential sale of the property. Calco submitted a second letter of intent on September 21, 2006, containingalowerpurchaseprice,butwithmanyother attractive terms, including a $250,000 nonrefundable deposit,and,mostimportantly,an‘‘asis’’provisionthat 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 immediatelyactonCalco’ssecondletterofintent,afewweeks 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 accordancewiththetermsofthesecondletterofintent, and promised that Calco would close on the property quickly. OnOctober27,2006,approximatelytwomonthsafter Landmark learned that the town would not participate in the application to the authority, Chung, LLC, sent a letter to Landmark purporting to terminate their contract for the sale of the property. The letter provided, interalia,thattheLandmark-Chungcontractwaspredicated upon receipt of funding from the authority and that, because the town would not join the application,
the contract was ‘‘incapable of being performed.’’ In light of Chung, LLC’s repudiation of the contract, Landmark’sabilitytomoveforwardwiththestepsnecessary todevelopthepropertywashinderedbecausetheregulatory approvals required Chung, LLC’s cooperation. Shortly after the repudiation, however, Landmark filed an action against Chung, LLC, seeking specific performance of the Landmark-Chung contract, and recorded thecontractandalispendensonthetownlandrecords. 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 theproperty.Thatcontractacknowledgedtheexistence ofLandmark’slegalactionandprovidedthattheclosing 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 Calcopurchasing andreceivingassignmentsof thefirst 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.) OnthesamedaythatCalcoandChung,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 Chungalonewasunabletoafford,(2)Calcowouldloan 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]greementbetweenthem,andresolutionofvarious related issues’’ (collectively, Calco-Chung contracts).Calco’sagreementstoprovidetheseloanswere 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,thetotalamountofeachofthoseloanswould becomedueninetydaysafterCalco’spurchaseandsale 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 Landmark-Chungcontractandtheactionforspecificperformance, 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 Landmark-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,LLCv.ChungFamilyRealtyPartnership,LLC, 125Conn.App.678,708,10A.3d61(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 actionontheproperty,and,aftertheentryofajudgment offoreclosure,thepropertywassettobesoldatauction on January 22, 2011. After the Appellate Court affirmed the judgment of specificperformance,Landmark,knowingthatthedate oftheforeclosuresalewasapproaching,offeredtopurchase the tax liens on the property in an effort to forestallthesalesoastoenableLandmarkandChung,LLC, to perform under the terms of the Landmark-Chung contract.Landmarkandthetownreachedanagreement 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 hearingonthemotiontoopenthejudgmentandextend the sale, however, Calco’s attorney entered an appearance 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 referee, 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, judicial district of New Britain, Docket No. CV-10-6004745S (January 18, 2011). The same day that the court granted the motion to extend the foreclosure sale, Calco sent a letter to the townalsoofferingtopurchasethetaxliens.Facedwith 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 lowerpurchaseprice,ratherthanpursuetheconditions under the contract, Landmark declined to do so, contending that the judgment of specific performance entitled 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 salvageitsabilitytopursuethoseconditions,Landmark offeredtoloanChung,LLC,theamountitowedintaxes, 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 CalcoChung contracts. Calco, however, refused to do so. Withouttheabilitytoreach anagreementregardingthe paymentofthetaxes,theforeclosuresalewentforward, at which a company controlled by Senese was the successful bidder for the property. The trial court thereafter approved the sale and committee deed. Plainville v. Chung Family Realty Partnership, LLC, Superior Court, judicial district of New Britain, Docket No. CV10-6004745-S (April 6, 2011). The record also reveals the following procedural history. Landmark brought this action against the defendants 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,’’inviolationofCUTPA.SeeGeneralStatutes§ 42110b (a). Prior to trial, Landmark applied for a prejudgment 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. Initsmemorandumofdecision,thecourtfoundthatthe defendants’actionswere‘‘nothingmorethanaggressive business practices’’ and, therefore, found that the conduct of the defendants could not constitute tortious interference or violations of CUTPA. The court’s denial ofaprejudgmentremedywasaffirmedbytheAppellate Court.LandmarkInvestmentGroup,LLCv.CalcoConstruction & 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 andviolation ofCUTPA. Thejury awarded Landmark damages in the amount of $4 million, and, finding that both defendants had acted with reckless indifferencetoLandmark’srights,concludedthatLandmark should also be awarded common-law punitive damages.5 After the court accepted the jury’s verdict, the defendants filed a motion for judgment notwithstanding the verdict, in which they argued, inter alia, thattherewasinsufficientevidencetoprovethateither Calco or Senese tortiously interfered with the Landmark-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 prejudgmentremedy.WithrespecttoLandmark’stortiousinterference claim, the trial court first concluded that, as a matter of law, the jury could not consider as evidence anyofthedefendants’conductthatoccurredafterOctober 27, 2006—the date that Chung, LLC, repudiated the Landmark-Chung contract—because, according to the trial court, once the contract was breached, the defendants 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 conduct 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 foreclosure 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 suffered ‘‘actual loss’’—an essential element of its claim of tortious interference—as a result of the defendants’ conductbecauseanylosswascaused,notbythedefendants’conduct,butratherbyLandmark’sfailuretopurchase the property after it won a judgment of specific performance.Finally,thecourtheldthat,evenifitwere to find that Landmark presented sufficient evidence of tortious interference, it failed to present any evidence fromwhichthejurycouldconcludethatthedefendants actedwithrecklessindifferencetoLandmark’scontractual rights because, as the court had previously concluded when it denied Landmark’s application for a prejudgment remedy, ‘‘[the defendants’] action[s] were nothing more than aggressive business practices.’’ (Internalquotationmarksomitted.)Thus,thecourtheld 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 concludedthatnoreasonablejurycouldhavefoundthatthe defendants committed any unfair or deceptive practice prohibited by CUTPA, and, second, that even if the defendants’actionswereunfairordeceptive,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 improperly substituted its own factual findings for those that reasonably could have been found by the jury. Land
mark further contends that it presented sufficient evidence from which the jury could find that the defendants tortiously interfered with the LandmarkChung 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,afteritwasawardedspecificperformance. 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 consider it. Before turning to the merits of these arguments, we beginbyarticulatingthestandardofreviewthatgoverns our resolution of these claims. ‘‘We have stated that directedverdictsaredisfavoredbecause[l]itigantshave 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 withincarefullydefinedparameters.’’(Citationomitted; 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 notwithstandingverdict‘‘isnottositas[anadded]juror . . . but, rather, to decide whether, viewing the evidenceinthelightmostfavorabletotheprevailingparty, the jury could reasonably have reached the verdict that itdid’’[internalquotationmarksomitted]).Atrialcourt may only grant a motion for judgment notwithstanding the verdict if the ‘‘jury reasonably and legally could not havereachedanyotherconclusion’’;(internalquotation 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.) Salamanv.Waterbury,246Conn.298,304,717A.2d161 (1998). We review a trial court’s decision on a motion for judgment notwithstanding the verdict for abuse of discretion.Graysonv.Wofsey,Rosen,Kweskin&Kuriansky, 231 Conn. 168, 178, 646 A.2d 195 (1994). At the outset, we note that we agree with Landmark thatthetrialcourt’smemorandumofdecisionindicates that the court failed to view the evidence in the light mostfavorabletosustainingthejury’sverdict,themost starkindicationofwhichwasthat,ratherthanmarshaling the evidence from the trial most favorable to Landmark, 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. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628–29, 356 A.2d 893 (1975) (‘‘[t]he adjudication made by the court ontheapplicationforaprejudgmentremedyisnotpart of the proceedings ultimately to decide the validity and merits of the plaintiff’s cause of action’’). We must nevertheless considerwhether, evenwhen viewingthe evidence 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 deferencetothejury’sverdict,thatthetrialcourtimproperly granted the defendants’ motion for judgment notwithstanding 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 Landmark’scontractualrelations.‘‘Aclaimfortortiousinterference with contractual relations requires the plaintiff toestablish(1)theexistenceofacontractualorbeneficial relationship, (2) the defendants’ knowledge of that relationship, (3)the defendants’ intent tointerfere 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’ conductwastortious,Landmarkmakestwoarguments. First,Landmarkcontendsthatthetrialcourtincorrectly held that the jury could only consider evidence that
predated the repudiation of the Landmark-Chung contract as supporting its claim of tortious interference.6 Second,Landmarkarguesthat,inconsideringthecumulative impactof theevidence, thejury reasonablycould 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 . . . .’ ’’ Asathresholdmatter,wefirstconsiderwhatconduct 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 Landmark-Chung contract was breached on October 27, 2006, the contractual relations between Landmark and Chung, LLC, ended as of that date, and, therefore, the jurycouldonlyconsiderevidenceofconductpreceding that date. This was so, the court opined, because ‘‘conduct after the breach . . . could not have induced Chung,LLC,tobreachthecontract.’’(Emphasisinoriginal.) Landmark argues that this conclusion was incorrect 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 defendants’ 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,187Conn.374,376–77,446A.2d9(1982).Moreover, the mere fact that a contract is breached does not necessarily mean that the contractual relationship between two parties has terminated. Indeed, a multitude 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, evenatotalrepudiationofacontractmaynotterminate 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 successfully obtain an order of specific performance with respecttoacontractthat,legally,wasfully‘‘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 compelthewrongdoertoperformitsterms.’’[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,underthefactsofthiscase,whereLandmark sought and won specific performance of its contract, itis evidentthatLandmark’s andChung, LLC’scontractual 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 Senese’s company at the foreclosure sale was confirmed by the trial court, could properly be considered by the jury in determining whether Landmark presented sufficientevidenceoftortiousinterference.9Thetrialcourt’s conclusion to the contrary was improper. In light of this conclusion, we next consider Landmark’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. Landmark 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 wasineffect.Furthermore,Landmarkcontendsthatthe 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 oftheir actswere individuallywrongful. Weagree with Landmark that the jury had before it sufficient evidence from which it could conclude that the defendants’ 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 plaintiff successfully to prosecute [an action for tortious interference]itmustprovethatthedefendant’sconduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously.’’ (Citations omitted; internal 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 measure beyond the factof the interference itself’’ [internal quotation marks omitted]). ‘‘The plaintiff in a tortious
interferenceclaimmustdemonstratemaliceonthepart of the defendant, not in the sense of ill will, but intentionalinterferencewithoutjustification.’’(Internalquotation 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, Interference 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 bettercontractterms,10thedefendantssoughttoexploit Chung’s financial hardship and to exert economic pressure over him and his company in an effort to ensure thatChung,LLC,wouldbeforcedtocontinuetopursue a contractual relationship with the defendants, in derogation of the contract that Chung, LLC, had with Landmark. 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 circumstances in which it is exerted . . . the degree of coercion involved, the extent of the harm that it threatens . . . and the general reasonableness and appropriateness of this pressure as a means of accomplishing the actor’sobjective’’).ByenablingandencouragingChung, LLC,tofightthespecificperformanceactionbyfunding that litigation, the defendants ensured that the performance of the Landmark-Chung contract was more burdensome 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 saleagreementwasineffect,asChung,LLC,wasdriven deeper into the defendants’ debt, it was forced to strive to terminate the contractual relationship with Landmark so that the contract with the defendants could go forward. Otherwise, Chung, LLC, risked not only losing thepropertythroughthedefendants’foreclosureonthe 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
cludedthatthisconductconstitutedextremeeconomic pressurethatwentbeyondthenormalindustrypractice of competition between rival developers. See Church of Scientology International v. Eli Lilly & Co., 848 F. Supp.1018,1029–30(D.D.C.1994)(questionofwhether defendant’s economic pressure amounted to tortious interference was issue for jury). Tellingly, Senese conceded at trial that the Calco-Chung contracts were unusual and unlike any other backup offer he had extended in his career. The jury also couldhave inferred that the defendants hadanillicitmotivewhen,forexample,afterLandmark wonspecific performanceofthe Landmark-Chungcontract and there was no longer any question that Landmark had the right to purchase the property, the defendants took steps to prevent Landmark from extending the date of the foreclosure sale of the property, 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 liensfrom the town untilimmediately 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’actswerepartofaconcertedefforttointentionally 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 conclusion, 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., AmericanDiamondExchange,Inc.v.Alpert,101Conn. 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 sufficient 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. Therecordrevealsthefollowingadditionalfactswith 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’ tortious interference. Kane, a commercial real estate appraiser certified by the state of Connecticut and a designatedmemberoftheAppraisalInstitute,usedboth a sales comparison approach and an income capitalization 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 purchasepriceandcostsofdevelopment,Kanedetermined that Landmark’s lost profits were approximately $4.5 million.Inreachingthatconclusion,Kanemadeaseries 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 noreasonablejurycouldhavefoundthatthedefendants caused Landmark any loss because Landmark did not prove that there was a reasonable probability that it wouldhavepurchasedthepropertyorwouldhavebeen abletodevelopit.Thecourtbasedthisconclusionprincipally on two separate grounds: first, that Kane’s assessment as to Landmark’slost profits was not credible; and second, that Landmark’s failure to purchase thepropertyafterthejjudgmentofspecificperformance 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 trialcourt’sreasoninginarguingthatLandmarkfailedto 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 Landmarkwasrequiredtopurchasethepropertyimmediately after the judgment of specific performance, rather than pursue the contingencies under the contract. We agree with Landmark. It is well established that, in order for a plaintiff to recover for a claim of tortious interference, it must establishthat,‘‘asaresultoftheinterference,theplaintiff 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. Feinberg, 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 interference of the defendant, there was a reasonable probability that the plaintiff would have . . . made a profit’’ [emphasis added]). ‘‘A major problem with damages of thissort,[however],iswhethertheycanbeprovedwith 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 expecteddevelopment.AlthoughKane’sevaluationwas based on a series of assumptions, namely, that Landmarkwouldreceivetheregulatoryapprovalsnecessary to develop the property, those assumptions were supported 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 astheassumptionsarereasonableinlightoftherecord evidence’’ [internal quotation marks omitted]). The defendants did not provide the jury with any evidence to controvert this point, nor did they present any evidencethatsuchapprovalswouldhavecontainedconditions 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 present their own expert to contest the reasonableness of Kane’s lost profits evaluation. Whether Kane’s testimony was credible in light of the evidence was a determination 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 testimony’’ [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 performance, 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,butratherrequiredLandmarktopurchasethe 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 performance ofthose 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 absenceof[the]defendant’sinterference,thecourtmay . . . give due weight to the fact that the question was made hypothetical by the very wrong of the defendant’’ [internalquotationmarksomitted]);Romaniellov.Pensiero, 21 Conn. App. 57, 61, 571 A.2d 145 (1990) (‘‘[t]he law does not require a party to proceed with preparations for performance if such preparations would be futile’’).Indeed,itwouldbenonsensicaltorequireLandmark, as the injured party, to pursue these contingencies at its expense after Chung, LLC’s repudiation of the contract, or, after the judgment of specific performance, in light of the uncertainty surrounding Landmark’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 precluded . . . 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 theprecisetermsoftheLandmark-Chungcontractafter the trial court rendered a judgment of specific performance, 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 performance after seller’s repudiation of contract where buyer’sobligationtotenderpurchasepricewasconditioned 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 followandgiveeffecttothetermsofthecontract’’).Thus, we conclude that the trial court improperly found that Landmarkfailedtoestablishthatthedefendantscaused
Landmark to suffer actual loss, and, consequently, improperlyrenderedjudgmentnotwithstandingtheverdict on Landmark’s claim of tortious interference. II We next consider Landmark’s argument that it presented sufficient evidence from which the jury could find that the defendants acted with reckless indifference to Landmark’s rights under the Landmark-Chung contract, thereby supporting the jury’s determination that Landmark should be awarded common-law punitive damages.15 As this court recently reaffirmed: ‘‘In order to obtain an award of common-law punitive damages, the pleadings must allege and the evidence must be sufficient to allow the trier of fact to find that the defendant exhibited 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 decision to render judgment notwithstanding the verdict, we may affirm that decision only if we find that the jurycouldnotreasonablyandlegallyhavereachedtheir 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.) 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 thatthe‘‘characteristicelement’’ofrecklessness‘‘isthe design to injure either actually entertained or to be impliedfromtheconductandcircumstances.’’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 purchase 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 Landmark had a right to purchase the property, the defendants were still taking any step they could to thwart thedeal.Thejurycouldinferthroughthisandthedefendants’ other conduct that the defendants acted to purposefully 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.’’ Harrisv.Bradley MemorialHospital & 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 notwithstandingtheverdictonthiscount,thetrialcourtconsidered individually each of the defendants’ acts on which Landmarkreliedinsupportofthisclaimandconcluded that none of them was ‘‘immoral, unethical, or unscrupulous,’’ and further concluded that Landmark did not establish a causal connection between the defendants’ actionsandLandmark’sallegedlossessoastoestablish that it suffered an ‘‘ascertainable loss.’’ Landmark challenges these conclusions and contends that the same evidencethatsupportsitsclaimoftortiousinterference 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 thecigaretterulebythe[F]ederal[T]rade[C]ommission for determiningwhen apractice isunfair: (1)[w]hether the practice, without necessarily having been previously 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 person who suffers any ascertainable loss of money . . . as a result of the use or employment of a [prohibited] method, act or practice . . . .’’ (Internal quotation marksomitted.)Ulbrichv.Groth,supra,310Conn.409– 10. ‘‘Because CUTPA is a self-avowed ‘remedial’ measure, 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
foundbutaCUTPAviolationwouldnot.’’Id.,757.Moreover, ‘‘[w]hether a practice is unfair and thus violates CUTPAisanissueoffact,’’towhichwemustaffordour 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 thatthedefendants’conductwasinfurtheranceoftrade orcommerce,sotheonlyissuesbeforethejurywere(1) whether the defendants’ conduct constituted an unfair trade practice, and (2) whether Landmark suffered any ascertainable loss. We agree with Landmark that it presented sufficient evidence to satisfy both of these elements 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,Landmarkarguesthatthedefendants’‘‘overall scheme to wrest the property from [Landmark] . . . [constitutes]immoral,unethical,oppressive,orunscrupulous’’conductunderthesecondprongofthecigarette rule. As we previously explained, the jury reasonably could have found that the defendants conduct, including, 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 inferences could have been drawn by the jury from the totality of the defendants’ conduct, it parsed Landmark’sallegationsandconcludedthateachofthedefendants’actsdidnotmeetthestandardnecessarytoprove 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 sufficient 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 necessarily encompasses a broadermeaning than the term damage, and has been held synonymous with deprivation, detriment and injury. . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount. . . . [A] loss is ascertainableifitismeasurableeventhoughtheprecise 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]roximatecauseis[a]nactual causethatisasubstantial 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 quotationmarksomitted.)Artie’sAutoBody,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 presented 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 contingenciesintheLandmark-Chungcontract,thejury 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.

Outcome: 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.

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