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Elm City Services, LLC v. Big Y Foods, Inc.

Superior Court of Connecticut, Judicial District of New Haven, New Haven

October 22, 2015

Elm City Services, LLC
Big Y Foods, Inc


Robin L. Wilson, J.

This action arises from a service and maintenance dispute on a commercial property. On May 2, 2012, the plaintiff, Elm City Services, LLC (plaintiff), filed a three-count complaint against the defendant, Big Y Foods, Inc. (defendant), sounding in tortious interference with a contract, tortious interference with a business expectancy, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff claims monetary damages, punitive damages and attorneys fees pursuant to General Statutes § 42-110g, costs and expenses, and such other relief as the court deems appropriate. This action was tried to the court on April 14 and April 16, 2015. Testimony was presented from Jaime Brooks-Lynch, an employee of Brooks Properties, Inc. (Brooks), Paul Dispazio, a member of the plaintiff limited liability company, and Pamela McCarthy, real estate manager for the defendant. After the bench trial, the parties submitted post-trial briefs. As will be discussed further below, the court finds for the plaintiff as to Count One and Count Two, and for the defendant as to Count Three.


" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).


The burden of proof is on the plaintiff to prove all of the essential allegations of his complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of [his] cause of action by a fair preponderance of the evidence. Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id.


The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).


The court makes the following findings of fact based on a fair preponderance of the evidence. On October 14, 2009, the plaintiff, a snow removal contractor, entered into an agreement with Brooks, by which the plaintiff agreed to provide snow removal and other related services for Brooks' commercial property in Guilford, Connecticut for a term of six years and at an annual cost of $30, 100 plus sales tax. From October 14, 2009 through April 30, 2011, the plaintiff and Brooks performed accordingly. The defendant, the operator of a grocery store on the property, paid Brooks a pro rata contribution towards the cost the plaintiff's services during that period.

In early 2011, the defendant entered into an agreement with another company, Opus Two, LLC (Opus), to clear snow from the roof of its store. Paul Dispazio was involved in the coordination of services between Opus and the defendant. Although Dispazio serves as a member of the plaintiff limited liability company, and has worked with Opus, the plaintiff and Opus are distinct entities. In the course of performance of the snow removal services, a dispute arose between the defendant and Opus, which, in turn, led to litigation. The Opus litigation ended in a settlement between those parties. The Opus litigation was in no way related to the snow removal agreement between the plaintiff and Brooks. Nevertheless, the defendant felt compelled to take certain actions because of the Opus litigation. Those actions provided the foundation for the present lawsuit.

On September 29, 2011, with the Opus litigation pending, the defendant sent an email to Jaime Brooks-Lynch, stating, in relevant part: " Currently we are involved in a law suit with [Elm City/Opus Two] and it is very important that they do not plow snow at our Guilford location this 2011/2012 season . . . [P]lease call or e-mail Pam McCarthy verifying that Elm City/Opus Two will not be plowing and letting us know who is." (Plaintiff's Exhibit 2.) When Brooks-Lynch received this email from the defendant, she understood that the defendant was requesting that Brooks terminate the contract with the plaintiff and believed that the plaintiff and the defendant were parties in litigation. She was not aware of what that litigation was about. Within a week after Brooks-Lynch received the September 29, 2011 email, she contacted the defendant to discuss the email and in an authoritative and intimidating tone, the defendant advised Brooks-Lynch that Brooks' contract with the plaintiff had to be terminated. Brooks-Lynch felt bullied and intimidated by the defendant and felt that Brooks had to immediately terminate the contract with the plaintiff. Following that exchange, Brooks sought bids from other snow removal contractors and sent those bids to the defendant for review.

On October 7, 2011, Brooks also sent to the defendant a copy of the existing snow removal agreement with the plaintiff. Thus, the defendant was aware that the plaintiff had been the snow removal contractor for the property during the prior two years. Subsequent emails between the defendant and Brooks-Lynch demonstrate that the defendant was involved in the selection of a new snow removal company. On October 18, 2011, the defendant delivered an email to Brooks-Lynch inquiring as to how many bids Brooks was expecting for snow removal for the 2011-2012 season and further requested that Brooks forward all future bids to the defendant's attention. By October 18, 2011, Brooks-Lynch felt that Brooks had no other choice but to terminate the contract and find another snow plowing contractor.

On October 21, 2011, there were a series of email exchanges and telephone conversations between the defendant and Brooks-Lynch that further compelled Brooks to terminate the snow removal agreement. That morning, at 11:39 a.m., the defendant sent Brooks-Lynch another email, stating that " [o]ur legal Dept. has confirmed that we cannot have Elm City continue as the snow contractor for Guilford due to the pending legal action between Big Y and Elm City." (Plaintiff's Exhibit 5.) At 12:20 p.m., Brooks-Lynch requested a more detailed explanation, asking: " Can you send me the legal documentation you were speaking of when we just spoke on the phone; The one that said shoreline plaza is legally not allowed to use elm city services although we signed a contract with them prior to your lawsuit." This request prompted some backtracking ...

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