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Al Dente LLC v. Consiglio

Court of Appeals of Connecticut

March 21, 2017

AL DENTE, LLC, ET AL.
v.
RICHARD E. CONSIGLIO, EXECUTOR (ESTATE OF FLORA CONSIGLIO), ET AL.

          Argued December 6, 2016

         (Appeal from Superior Court, judicial district of New Haven, Frechette, J.)

          Laurence V. Parnoff, with whom, on the brief, was Laurence V. Parnoff, Jr., for the appellants (plaintiffs).

          Daniel P. Scholfield, with whom, on the brief, was Hugh F. Keefe, for the appellees (named defendant et al.).

          Lawrence J. Greenberg, for the appellee (defendant Ruth Consiglio).

          DiPentima, C. J., and Prescott and Alander, Js.

          OPINION

          PRESCOTT, J.

         The plaintiffs, Al Dente, LLC, and Carmine Capasso, appeal from the summary judgment rendered by the trial court in favor of the defendants, Robert G. Consiglio, Ruth F. Consiglio, and Richard E. Consiglio, individually, and as executor of the estate of Flora Consiglio. The plaintiffs claim that the court improperly concluded that no genuine issue of material fact existed as toany count of their operative complaint. We affirm the judgment of the trial court.

         Mindful of the procedural posture of the case, we set forth the following facts as gleaned from the pleadings, affidavits, and other proof submitted, viewed in a light most favorable to the plaintiff. See Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009). The defendants are owners of Sally's Apizza (Sally's), a culinary landmark on Wooster Street in New Haven. In 2013, the defendants entertained offers to purchase Sally's and the land on which it is situated. One such offer was made on December 3, 2013, by ‘‘Al Dente, LLC, a to be formed Connecticut limited liability company'' comprised of Capasso and five other individuals, including his brother, Vincent Capasso, Kristen Keslow, Marc Kes-low, and Tara Knight (collectively, original entity).[1]Weeks earlier, the original entity had retained Brenner, Saltzman & Wallman, LLP (law firm), to help prepare that offer and to organize Al Dente, LLC. The November 26, 2013 retainer agreement furnished by the law firm and ‘‘[a]ccepted, acknowledged, and agreed to'' by Capasso was addressed to six individuals-Knight, Capasso, Kristen Keslow, Marc Keslow, Vincent, Capasso's brother, and Giuseppe DeLucia-and outlined ‘‘the terms and conditions upon which [the law firm] will undertake to represent you. . . . In connection with the organization of Al Dente, LLC, we will undertake to represent the new entity and the six of you collectively in your capacity as organizers and initial owners of Al Dente, LLC.''[2] The law firm drafted the December 3, 2013 written agreement to purchase Sally's, which Capasso signed on behalf of the original entity.

         The defendants received several bids in excess of one million dollars. Capasso thereafter grew concerned that the original entity's bid was being ‘‘used to get [other bidders] to offer more and to increase [the] purchase price . . . .'' He therefore informed the defendants that the original entity would not ‘‘continue with the purchase of Sally's unless [they] came to an agreement [on] a bidding process to set the [c]ontract purchase price and to keep final bids confidential.'' On March 27, 2014, members of the original entity met with certain defendants and their legal representatives, at which time they orally agreed to the following protocols regarding the bidding process for the purchase of Sally's (collectively, bidding agreement): (1) initial bids would be disclosed to all parties presenting offers; (2) final bids would be due by 5 p.m. on April 14, 2014; (3) the identities of the bidding parties would remain confidential; (4) any bids submitted after that deadline would not be accepted; and (5) the highest bid would set the sale price. The defendants further agreedto ‘‘commence negotiations for sale with the highest bidder'' following the submission of final bids. Consistent with the foregoing, Attorney Robert W. Lynch, acting on behalf of the defendants, [3] disclosed the results of the first round of bidding in an April 7, 2014 e-mail to the bidding parties. In that correspondence, Lynch also apprised the parties that ‘‘[t]here will be one more round of bidding with all bids due by 5 p.m.'' on April 14, 2014.

         Capasso submitted a timely second bid on behalf of the original entity in an April 14, 2014 e-mail to Lynch. Attached to that e-mail was a letter addressed to the defendants regarding the ‘‘Purchase and Sale of Assets and Real Property.'' That correspondence contained a proposed ‘‘agreement [that] sets forth the terms and conditions for the acquisition . . . of the pizzeria business known as Sally's . . . together with the real property located at 237 and 245 Wooster Street . . . .'' Twelve pages in length, that proposed agreement states that it ‘‘contains all material terms and conditions of the Purchase Transaction and is intended to obligate Seller and Purchaser to consummate the transactions contemplated hereby. It is, accordingly, the intent of the parties hereto that this agreement constitute a legally binding and enforceable agreement.'' The proposed agreement also contains a merger clause, as § 9 (c) states that ‘‘[t]his agreement constitutes the entire agreement among the parties with respect to the matters covered hereby and supersedes all prior agreements, understandings, offers, and negotiations (oral or written). This agreement may be amended or modified only by a subsequent agreement in writing signed by each of the parties.'' The proposed agreement concludes by prescribing an exclusive method of acceptance, stating: ‘‘If you are in agreement with the terms of this agreement, please so indicate by countersigning this letter in the appropriate space below, whereupon this agreement shall become a binding agreement among the signatories hereto.'' None of the defendants signed that agreement.

         At approximately 5:30 p.m. on the evening of April 14, 2014, Lynch e-mailed the bidding parties and disclosed the amounts of two new bids.[4] He further stated that ‘‘[w]e plan to meet with the [defendants] to go over the new bids and negotiate the terms and conditions of the purchase agreement.'' After learning that the original entity was the high bidder, Capasso emailed Lynch on April 15, 2014, stating in relevant part: ‘‘Please let us know if you need to meet with us to go over the terms of our proposal. Look forward to working with you.'' The following day, Knight e-mailed Lynch. Noting that ‘‘[f]rom your e-mail it appears we have the highest offer, '' Knight inquired as to the ‘‘next step'' in the process.[5] On April 17, 2014, Lynch replied that ‘‘Greenberg and I need to review your contract with our clients and make a list of issues that need to be worked out.''

         On April 21, 2014, Capasso again e-mailed Lynch, stating that he was ‘‘following up to see if any terms within our bid need to be worked through.''[6] Capasso further stated that ‘‘[d]uring our [March 27, 2014] meeting with the [defendants] the parameters of the sale were brought up and we were informed that the highest price at the last bid would prevail and that the terms of the sale would be worked out. It has been brought to my attention that the condition of expansion and the pizza [oven] are not acceptable to the [defendants]. Please strike this term from our proposal. Please let us know if there are any other terms within our proposal that are not acceptable to the [defendants] and we will work out those terms as well'' Lynch subsequently informed Capasso that he needed to meet with his clients ‘‘to go over the contract and see what issues they have. We will then prepare a joint response with [Greenberg] and his client and will send the joint response to you for your review and comment.''

         On May 9, 2014, Lynch sent an e-mail to the law firm, which stated simply: ‘‘Here are the comments of the [defendants] to the latest Al Dente proposal.'' Attached to that e-mail was a one page document containing nine comments regarding the April 14, 2014 agreement (comment sheet).[7] In an e-mail sent to the law firm later that day, Capasso stated that ‘‘[o]ur group will be meeting to discuss the comments this weekend.''[8]

         On May 14, 2014, Capasso sent Lynch a two sentence letter that reads: ‘‘Enclosed, please find our signed counter offer with our deposit check for Sally's. Please get back to us with a closing date.''[9] Appended to that letter were two documents. The first was a cashier's check in the amount of $333, 000 payable to ‘‘Robert W. Lynch Trustee'' and ‘‘Lawrence J. Greenberg Trustee.'' The second was a modified version of the comment sheet, to which the following had been added: ‘‘Addendum To Contract Signed 4/14/2014. The foregoing nine (9) terms submitted by the Seller are hereby confirmed to be additional to the Contract signed 4/14/2014 and are made a part thereof'' (addendum sheet).[10] Capasso signed that document, as did a notary public and two ‘‘witnesses'' thereto.[11] Notably, that document was not signed by any of the defendants.

         As Robert G. Consiglio swore in his affidavit, the defendants instructed Lynch ‘‘to return the unsolicited ‘deposit check.' '' By letter dated May 20, 2014, and addressed to Attorneys Samuel M. Hurwitz and Jennifer Deakin at the law firm, Lynch stated: ‘‘Enclosed please find the unsolicited cashier's check which was delivered to our office last week.'' Later that day, Deakin emailed Lynch and Greenberg to inform them that ‘‘[o]ur client was troubled to learn that your clients do not believe they have a binding agreement with [the original entity] based on the bid procedures established by their counsel. [The original entity] believes it has a binding agreement with your clients as a result of the bid procedures and related events and remains ready, willing and able to complete the transactions on the basis of that agreement. Please advise on a closing date.'' Lynch replied approximately one hour later, stating that ‘‘[w]e don't have a binding agreement with any potential purchaser at this time nor has there been any decision as to who the purchaser will be. The [original entity's] bid is still being considered but no decision has been made.''

         Seven weeks later, Deakin sent a letter dated July 8, 2014, to Lynch and Greenberg, in which she communicated the original entity's concern that ‘‘your clients are continuing to solicit and/or consider bids to purchase Sally's . . . .''[12] Deakin stated that the original entity ‘‘won the bid to purchase Sally's pursuant to such sealed bid procedures, and, further, has a binding agreement with your clients to purchase Sally's.'' Deakin thus indicated that the original entity ‘‘remains ready, willing and able to consummate the closing of the purchase and sale of Sally's under the terms and conditions of its agreement with your clients that it has negotiated in good faith.'' If the defendants failed to proceed with the transaction, Deakin cautioned, the original entity was ‘‘prepared to take all measures, including legal action . . . .'' Nevertheless, a majority of the members of the original entity ultimately voted against taking any legal action against the defendants, and so informed Capasso and his brother Vincent.

         On July 19, 2014, a limited liability company operating agreement was executed for the entity known as Al Dente, LLC. That agreement was signed by Capasso and his brother Vincent, and described the two as sole and equal interest members thereof.[13] Capasso thereafter retained the counsel of Attorney Laurence V. Parnoff, who prepared a complaint on behalf of the plaintiffs, which was served on the defendants on August 20, 2014. That complaint contained three counts. The first sounded in breach of contract-specifically the breach of a purchase agreement stemming from the comment sheet, which the plaintiffs characterized as a ‘‘counteroffer, '' acceptance of which allegedly was memorializedin the addendum sheet. The second count alleged breach of the bidding agreement.[14] The third count, derivative of the second, alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.[15]

         In their respective answers, the defendants denied the substance of those allegations. Following a period of time in which the parties conducted extensive discovery, [16] the defendants moved for summary judgment in February, 2005, claiming, inter alia, that ‘‘[t]here is no dispute of fact that the parties never entered into a contract because there was no manifestation of mutual assent; further, submitting the highest bid does not establish an enforceable contract under Connecticut law . . . .'' The plaintiffs, in turn, filed a memorandum of law in opposition. The court heard argument on the motion for summary judgment on June 16, 2015. By memorandum of decision dated August 10, 2015, the court concluded that no genuine issue of material fact existed as to whether the defendants entered into a purchase agreement with the plaintiffs. It further determined that no such issue existed with respect to the alleged breach of the bidding agreement.[17] Accordingly, the court rendered summary judgment in favor of the defendants on all counts, and this appeal followed.

         Before considering the particular claims advanced by the plaintiffs in this appeal, we note the well-established standard of review governing a court's grant of summary judgment. ‘‘The fundamental purpose of summary judgment is preventing unnecessary trials.'' Stuart v. Freiberg, 316 Conn. 809, 822, 116 A.3d 1195 (2015). ‘‘Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non moving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . A material fact . . . [is] a fact which will make a difference in the result of the case.'' (Internal quotation marks omitted.) Id., 820-21. ‘‘Summary judgment . . . is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.'' (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). Our review of a grant of summary judgment is plenary. Stuart v. Freiberg, supra, 821.

         I

         The plaintiffs' primary contention is that a genuine issue of material fact exists as to whether the defendants breached the bidding agreement by ...


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