Opinion
No. FST CV 08-4018089
October 27, 2011
MEMORANDUM OF DECISION MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANTS CT INDY #316, BOZZUTO'S #317 AND PLAINTIFF NEW BREED #215
INTRODUCTION
The plaintiff, New Breed Logistics, Inc. ("New Breed") filed a verified complaint dated July 31, 2008 and thereafter an amended verified complaint dated August 18, 2008, naming as defendants CT INDY NH TT, LLC ("CT INDY") and Bozzuto's, Inc. ("Bozzuto's"). On September 10, 2009, the defendant Bozzuto's filed an Answer, Special Defenses, Counterclaim and Cross-Claim to the August 18, 2008 Amended Complaint. The defendant CT INDY filed an answer on October 2, 2009.
CT INDY filed a motion for summary judgment dated August 14, 2008 and a supplemental memorandum dated October 16, 2008. Argument was heard on October 18, 2010 on this motion and on February 10, 2011, the court issued a Memorandum of Decision denying the defendant, Ct Indy's, Motion for Summary Judgment as to all the counts of the Amended Complaint.
On June 3, 2011, the defendant, CT INDY, filed a motion for summary judgment that addressed each of the cross-claims filed against it by Bozzuto's. On September 22, 2011, this court denied the defendant, CT INDY's, Motion for Summary Judgment on the Cross-claims in its entirety.
Each of the parties, including Bozzuto's have filed motions for summary judgment addressed to the August 18, 2008 Amended Verified Complaint.
By motion dated June 3, 2011, the defendant, CT INDY, has filed a motion for summary judgment as to the First Count (Temporary and Permanent Injunction), Second Count (Declaratory Judgment), Third Count (Specific Performance), and Fourth Count (Breach of Contract) of the August 18, 2008 Amended Complaint against the plaintiff, New Breed Logistics, Inc. The defendant provided an affidavit from Michael O'Brien and Exhibits in support of the motion. On June 17, 2011, the plaintiff, New Breed and the defendant, Bozzuto's, filed memoranda and affidavits with attached exhibits in opposition to the CT INDY motion.
The defendant, CT INDY, has referred to the memorandum of law dated August 14, 2008 and October 16, 2008 in support of this motion for summary judgment. The defendant has also referred to a Statement of Undisputed Facts in support of the motion which submission is not recognized in the Connecticut Practice Book but is a requirement of the Federal Rules. Thus, the court will not utilize the undisputed facts as presented in the Statement in its decision on the instant motion.
The plaintiff, New Breed, filed a motion for summary judgment dated November 16, 2009 as to the claim for specific performance (Third Count). The defendant, CT INDY filed a memorandum in opposition with affidavits and exhibits dated June 17, 2011. The defendant, Bozzuto's, also filed a memorandum and affidavits in opposition to the New Breed motion dated June 17, 2011.
Lastly, the defendant Bozzuto's filed a motion for summary judgment dated June 3, 2011 as to Counts Two, Three, Four, Five and Six of the Amended Complaint. On June 17, 2011, the defendant, New Breed filed a memorandum in opposition to Bozzuto's motion for summary judgment. The court heard argument as to these motions for summary judgment on August 2, 2011. Although there are some differences, as a whole the arguments overlap and thus the court will address the motions of each party in the memorandum as noted below.
Although the motion submitted by New Breed contains each of these Counts, the memorandum in support does not address the breach of contract claim except to state that the court should not find for New Breed on this claim. There is no argument for the court to consider as to this Count from Bozzuto's. Counts Four, Five and Six do not state a cause of action against Bozzuto's.
BACKGROUND
On February 10, 2011 and September 22, 2011, this court entered decisions in the present action on motions for summary judgment at which time it provided the factual background to the events that led to the filing of the present action. The court incorporates the factual background within these decisions for the three summary judgments that are now before the court. The decision of the court in February addressed some of the very same issues raised by the defendant in this renewed summary judgment motion as well as additional arguments and positions of the defendants in relation to the Amended Complaint. The parties have submitted affidavits and exhibits that were neither filed nor considered in the February Decision.
Collectively, the motions for summary judgment address all of the Six Counts of the August 18, 2009 Amended Verified Complaint.
DISCUSSION GENERAL LAW
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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 nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In ruling on a motion for summary judgment the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id., 11.
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[B]efore a document may be considered by the court in support of a motion for summary judgment, 'there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code of Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
"[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
"A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
As noted above, the motions collectively address each of the Counts in the Amended Verified Complaint. The court will review each Count separately considering the accompanying arguments for summary judgment. However, because the analysis of many of the arguments is dependent upon the ruling of the court as to the Breach of Contract claim, the court begins with the argument of both CT INDY and Bozzuto's to grant summary judgment to them as to Count Four.
BREACH OF CONTRACT (COUNT FOUR)
Both defendants have submitted a motion for summary judgment on Count Four which alleges that CT INDY breached the Lease Agreement with the plaintiff, New Breed, to extend a right of first offer for the Grocery Building. The defendant CT INDY filed a prior motion for summary judgment dated August 14, 2008 as to each count of the Amended Complaint, including the Count Four for breach of contract. This court denied the motion by Memorandum of Decision dated February 10, 2011. The instant motion for summary judgment raises two new claims and renews the prior arguments. The defendants have included additional documents in support of each of the arguments for granting this summary judgment motion. The first argument of the defendant, CT INDY, for summary judgment is that a letter dated March 26, 2008 was the Landlord's Notice of Availability pursuant to the Lease and that the plaintiff failed to accept within the five days as required by Paragraph 37(a) of the Lease Agreement. Therefore, the defendant claims the right of first offer has already been exercised. The defendant, Bozzuto's, joins this argument. The defendant, CT INDY, next argues that the right of first offer is different than a right of first refusal thus not supporting the claims for relief by the plaintiff. The defendant, CT INDY, renews its' argument that the plaintiff is not entitled to the right of first offer as set forth in Paragraph 37 because such a right was extinguished when the plaintiff exercised an option for additional space in the Produce Building.
A portion of the last argument by the defendant in regard to the contract interpretation has already been addressed by the court in the February 10, 2011 ruling regarding the breach of contract cause of action. The defendant argues that the language regarding the right of first offer is unambiguous and thus summary judgment should be granted. The defendant contends it is unambiguous because it clearly provides that only if the plaintiff fails to exercise an option for the Produce Building or the Grocery Building that they would have a right of first offer. "[W]here the contract language is unambiguous, we must give the contract effect according to its terms . . . Moreover, in construing interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13-14, 938 A.2d 576 (2008). In the February 10, 2011 decision, this court provided an extended analysis of the impact of the contract language which it relies upon and incorporates into the instant argument for summary judgment of the defendants on Count Four of the Amended Verified Complaint.
The court will first address the new arguments and additional documents and facts presented by the parties which they contend support their interpretation of the right of first offer provision within the Lease Agreement.
The defendants argue that the March 26, 2008 letter satisfied any obligation to provide a right of first offer, and in the alternative that there is no right of first offer under the terms of the contract because the plaintiff exercised an option for the Grocery Building. Both parties refer to documents and the actions of the parties in negotiations that impacted the Lease Amendments. Both parties contend that the documents and actions of the parties support their arguments as to an unambiguous interpretation of Paragraph 37. Having argued this however, each of the parties has a different interpretation of the impact of the March 26 letter, exercising the option for the Grocery Building and the negotiations for amendments to the Lease Agreement between New Breed and CT INDY on the motions for summary judgment submitted by the plaintiff and defendants. The court will examine each of these arguments in determining if summary judgment should be granted to the defendants or the plaintiff.
The March 26, 2008 Letter
The parties have distinct opinions as to the impact and meaning of the March 26 letter from Montalti to Saltzman. (Exh. C to Peloso affidavit.) The plaintiff contends that this letter is a response to ongoing negotiations for the extension of the agreement for the leased premises to New Breed. The defendants contend that the letter meets the obligation under the Lease Agreement as a Landlord's Notice of Availability to New Breed pursuant to Paragraphs 37 and 30 of the Lease. This argument is specious for a number of reasons. The letter, which has been provided to the court as an exhibit by both parties, does not in any manner refer to the right of first offer. The language of the letter discusses a "response to your proposal" and "present the following counter-offer." The letter indicates as to the proposal that "[t]he terms and conditions of the original lease inclusive of the two amendments shall apply except where amended in this offer letter." This very statement leaves intact the right of first offer. The entire tenor of the letter is a negotiation by the plaintiff New Breed to take further space. Nowhere in the correspondence does it indicate that this is the "Landlord's Availability Notice" or that the letter is pursuant to Paragraph 37 of the Lease Agreement. This letter is almost identical to the form of the letters exchanged between the parties in prior negotiations. The difficulty with accepting the proposition of the defendants is that the right of first offer is not a negotiation but puts the Tenant on notice that the property is available for lease and more importantly that the Tenant has five days to respond or it will be available to others. The proposal in the March 26, 2008 letter contained the language, "It is understood that this proposal is non-binding on either party and it shall not be construed as a legally binding agreement between the parties." This language is contrary to the right of first offer which states if New Breed accepts the offer within the five days the parties "shall execute an amendment to the Lease to provide for the inclusion of the Additional Space under the terms and conditions set forth in Landlord's Availability Notice." The Notice of Availability is not a negotiation because the notice makes it binding upon the parties. A negotiation such as the one noted in the March 26, 2008 letter contemplates a different approach and is not viewed as a "take it" or "leave it" offer implicit in the Paragraph 37 Right of First Offer.
The defendant does concede that the letter may not be the correct "form" but does provide New Breed with the substance of the Notice.
It is interesting that Michael O'Brien in his June 2, 2011 affidavit refers to this letter in paragraph 5 but indicates that it is to be filed under seal. The letter is not confidential and was not provided earlier by the defendant in the previous summary judgment.
The defendant argues that it is not necessary to caption the letter as the Notice of Availability and that instead this court should not view the form over the substance of the letter which it argues satisfies the notice. As noted above the court does not find that the substance of the letter satisfies the notice.
The intensity or the purpose and the sense of urgency in determining if New Breed should enter into an extended lease may certainly change if New Breed believes that the Landlord will seek other alternatives or that there may be another party ready, willing and able to enter into a lease of the same property. There is a strong rationale for treating a right of first offer differently than a negotiation to lease or an exercise of an option to lease the property. If the letter was perceived as a right of first offer, the plaintiff New Breed may have viewed their position differently than simply negotiation for terms and conditions to exercise an option. There is an understandable reason that the lease agreement contains separate provisions with a distinct notice requirement for the right of first offer. It is to put the party on notice that if they do not agree to the terms and conditions someone else may have the opportunity to lease the property. This Section of the Lease Agreement states: "All notices required to be given hereunder shall be sent by registered or certified mail, return receipt requested, by Federal Express or other overnight express delivery service to [Louis DeJoy and Richard Valitutto], New Breed's Chief Executive Officer and General Counsel respectively, at New Breed's address in High Point, North Carolina]." The affidavits and the exhibits submitted as part of the motion and opposition do not provide evidence that the March 26 letter satisfies the requirements of Paragraph 30 or 37 of the Lease Agreement. There is no return receipt or Federal Express notation nor is there information as to how the notices were sent. The individuals to whom the notice were sent were not the proper parties in accordance with the notice provisions. The precise notice requirement is necessary because Paragraph 37(a) provides in part that: "Within five (5) days after Tenant's receipt of Landlord's Availability Notice, Tenant must give Landlord written notice pursuant to which Tenant shall elect either (i) to lease the entire Offered Space on the terms and conditions set forth in Landlord's Availability Notice, or (ii) to decline to lease the Offered Space. If Tenant fails to elect clause (i) within such five (5) day period, then Tenant shall be deemed to have declined to lease the Offered Space. In the event Tenant declines (or is deemed to have declined) to lease the Offered Space, then Landlord shall be free to lease the Offered Space to any other party(ies) without further obligation to Tenant hereunder; however, Tenant shall retain its first offer rights hereunder with respect to any part of the First Offer Space (1) that was not covered by Landlord's Availability Notice." Without the proper notice, the Tenant may be precluded by time constraints from exercising its right. The defendant, Bozzuto's joins this argument in its memorandum claiming that New Breed failed to respond in five days under the provision.
The plaintiff also submitted exhibits of emails that were exchanged after the March 26 letter during the month of April 2008 (14, 15, and 22) demonstrating that the parties were involved in negotiations and not a right of first offer (See Exhibit bate stamp #NB 002370).
The plaintiff argues that the defendant knew precisely what was necessary under Section 30 because on July 18, 2008 the defendant sent a notice after Bozzuto's entered into an agreement that satisfied the requirements of the Lease Agreement, Section 30. See discussion below.
The defendant's position that this letter should satisfy the requirements of Paragraphs 30 and 37 is further contradicted by the very actions of CT INDY after it was informed by the plaintiff on July 17, 2008 that New Breed had a right of first offer for the leased space. On that very date, July 17, 2008, CT INDY sent a "Landlord's Availability Notice" pursuant to Paragraph 37 to the appropriate parties by federal express to offer the Transportation Building to New Breed. This letter was captioned "Landlord Availability Notice," it referred specifically to Paragraph 37 provision and it provided the language that if the tenant did not respond within five days the landlord will be free to lease to others. A comparison of the letters that the defendants argue satisfy the provision offer stark differences such that the March 26, 2008 letter does not remotely satisfy the intent or the clear writing to satisfy the obligations of Paragraphs 30 and 37.
Having determined that the March 26, 2008 letter does not satisfy the contractual obligation for a right of first offer, the court will now examine the defendant's claims that the right of first offer has a different impact than the right of first refusal and that the contractual provision does not require a right of first offer for the Produce Building because the plaintiff exercised the option for the Grocery Building.
The Right Of First Offer
The defendant CT INDY argues in support of its motion for summary judgment as to Count Three and in opposition to New Breed's motion for judgment as to Count Three for specific performance that the right of first offer cannot be equated with the right of first refusal in determining if the defendant satisfied its contractual obligations. Although these arguments are in response to the motion on the Specific Performance, the arguments affect the motion for summary judgment as to Count Four, breach of contract, and are included in the court's determination as to whether summary judgment should enter on Count Four for a breach of contract as well as the claim for Specific Performance. The defendant argues that the right of first offer requires only that the Landlord note that the property is available and offer the property for lease providing the terms and conditions to the Tenant but that the right of first refusal would give the Tenant notice that the Landlord has received an offer to lease and that the Tenant is given the opportunity to lease the property with the same terms and conditions set forth in the offer.
CT INDY contends that there is a significant distinction between the terms right of first offer and right of first refusal. CT INDY is correct that there are distinctions between the two but the obligations to the Landlord to initiate some action as a result of a determination to lease the property or upon an offer by a third party is similar in both. The right of first refusal clearly gives the Tenant the right to the same terms and conditions being considered by the Landlord. The right of first offer is more than a negotiation for the lease as the defendant would have the court believe. However, the right of first offer does not guarantee the same terms and conditions but allows an opportunity to lease the property when the Landlord is considering another offer. For this right to have any meaning and application, it must be initiated when the Landlord is negotiating with another or intends to seek a Tenant for the same space. The "Notice of Landlord Availability" puts the Tenant on notice that if they do not accept the terms within the specified time (five days), the Landlord can lease to a third party. Without such notice the Tenant cannot differentiate between ongoing negotiations like those in this action and the fact that the property can be leased to another after the passage of five days. As stated above, the notice provision has a purpose which was not fulfilled by the March 26, 2008 letter or any of the subsequent emails or telephone discussions that never brought to light the fact that there was a third party interested in the property.
The court recognizes that in the February 10, 2011 decision, the analysis of the court referred to the right of first refusal but after further argument and legal support by the defendant notes there are distinct differences which may affect the claims of the parties.
In the decision of this court dated February 10, 2011 regarding the motion for summary judgment by the defendant CT INDY, the court indicated that the right of first offer indicates that the plaintiff is to be offered upon the same terms. However, upon further review of the language and the legal precedent, the right of first offer does not reflect it is an offer upon the same terms but is simply the first opportunity to lease an available property upon whatever terms and conditions are established by the Landlord.
In the present case, the argument of the plaintiff is that pursuant to the lease agreement they must be offered the opportunity to lease the space with the same terms before it is offered to another. This argument embellishes what is required by the right of first offer as noted above. The defendant had no obligation to discuss the exact terms of the Bozzuto's negotiations but CT INDY was obligated to provide the notice as defined in Paragraph 37 and delivered in the manner defined in Paragraph 30. If the plaintiff chose not to accept the terms and conditions of the right of first offer, the property could be leased to another. In order to satisfy this contractual obligation, the defendant, CT INDY, was obligated to fully inform the plaintiff that it intended to lease the building and New Breed had five days to accept or CT INDY could lease to others. This notice would take the discussion out of the realm of the ordinary on-going negotiation that occurred between the parties and satisfy the terms of paragraph 37. CT INDY has not provided any evidence or testimony to satisfy its burden that they provided proper notice of the right of first offer pursuant to this contractual obligation. The right of first offer is not however a right to the same terms which will be further discussed in reference to the arguments concerning the Transportation Building.
Therefore, the issue remaining is whether the Lease Agreement as written and interpreted requires CT INDY to give a right of first offer to New Breed in this situation. CT INDY contends that in accordance with Paragraph 37 that there is a right of first offer "only if New Breed did not exercise either the Grocery Expansion Option or the Produce Expansion Option." Paragraph 37 states in part that in the event that New Breed does not exercise either the Grocery Expansion Option or the Produce Expansion Option in accordance with Paragraphs 33 and 34 herein, as the case may be, then provided that New Breed is not in default under the terms of this Lease beyond any applicable cure period, New Breed shall have a one-time right of first offer to lease the remaining space of the Grocery Building or Produce Building, as the case may be (the "First Offer Space"), upon the following terms and conditions. (a) In the event that Landlord anticipates that all or any portion of the First Offer Space may become available during the Term, Landlord shall give Tenant written notice of the availability of all of such portion of the First Offer Space, as the case may be (the "Offered Space") setting forth the terms and conditions (including, without limitation, the rental rate and the duration of the proposed term, etc.) upon which landlord would be willing to lease the Offered Space ("Landlord's Availability Notice"). Although there is no reference to the possibility that the plaintiff may give up the right of first offer if it exercises an option on one of the buildings, this is the defendant's interpretation of Paragraph 37 of the Lease Agreement. The position of the defendants that the expansion to obtain the added Grocery Building negated this contractual obligation to provide a right of first offer, is questionable based upon the language of the Lease Agreements as a whole, the actions of the parties, documents produced as part of the ongoing business relations between the parties or an interpretation of the plain language. The plaintiff contends the language "as the case may be" secures the right of first offer no matter what occurred with the Grocery Expansion (or the Produce Option). Once again, the issue is whether the language of Paragraph 37 provides for a right of first offer and the required notice, only in the event that the plaintiff has not exercised an option for the Grocery Expansion or the Produce Expansion.
The plaintiff has submitted deposition testimony of Gianluca Montalti in which the defendant answers questions about an on-going negotiation for the right to the property. This deposition testimony discusses the multiple offers in negotiation for the property and leaves a question as to why the parties were negotiating for property which defendant contends was no longer subject to the right of first offer. (Plaintiff's Affidavit and Evidentiary Appendix, Exh. B.)
In the prior decision of this court dated February 10, 2011, the court addressed the language of the provision for a right of first offer to determine if it limited the right to a situation when there had been an expansion of the Grocery or Produce Buildings. The court's findings in the February 10, 2011 decision analyzed the same argument in relation to the claim of a breach of contract. The court found that the language and the defendant's inclusion of the same provision in the agreement to lease the Transportation Building "lends credence to the plaintiff's interpretation." The language itself however, leaves a doubt as to the application, if at all, for the right of first offer for the Produce Building or the Grocery Building. The plaintiff provided the court with documentation that the defendant, while amending the Lease Agreement, made some attempt to make changes to the right of first offer. (New Breed Exhs. 1 and 2.) None of the documents specifically address paragraph 37 but the emails between Richard Valitutto and David Furman state ". . . if you are going to send language regarding 34(b) or regarding the ROFO please send it tonight." The response to this email by Richard Valittuto was, "I have not conceded your modification in 6f of the Second Amendment relating to the Right of First Offer . . ." There is nothing in this exchange of documents that offers support for the position of the parties that there is a clear contractual obligation to continue or discontinue the right of first offer in Paragraph 37. This language addresses to some degree the options. The Second Amendment to the Lease does not make changes which would logically follow from the other amendments such as deletion of other paragraphs that are no longer relevant. For instance, the option paragraphs 33 and 34 were not deleted in the subsequent amendment although the Grocery Option was moot. The amendment § 8b states: "Except as expressly set forth herein, the Lease is unmodified and in full force and effect." This provision has no real significance if in fact Paragraph 37, as interpreted, does not provide a right of first offer for the Produce Building once the Grocery option is exercised. So even if the paragraph is part of the amendment, it does not change the intention of the parties or the need for interpretation of the intent of the paragraph. Once again, the language "either or" and "as the case may be" generates uncertainty of the proper application of the right of first offer. There is a question of fact as to why or whether the provision for a right of first offer was not removed from the amended leases because it had as defendant contends a limited purpose. If remaining, what purpose does the paragraph serve? Is it included because the paragraph has a right of first offer or is it because the paragraph can be interpreted as having already been satisfied. However, it is unclear as to whether the language contained in paragraph 37 was included to permit only one right of first refusal for one of the two buildings no matter what options may have been exercised when it included the language "as the case may be."
To further complicate the issue of right of first offer the defendant, Bozzuto's, submitted a letter that was part of the negotiation for the lease which discusses the "right of first offer" for "the remaining available space throughout the lease term." (Exh. B to Wattenmaker June 3, 2011 Affidavit.) This language was only part of the negotiation for the Grocery Building but its' terms create more speculation as to what was available and for what period of time. Although this language refers to the Grocery Building, it is contrary to the position of the defendant because it permits the right of first offer to remain at least for the "lease term" and further that it applies to the "remaining available space throughout the lease term." There was no restriction in this exchange to the right of first offer.
Although the court finds that the plaintiff has a strong argument as to whether there was a breach of the contract regarding the Produce Building, the distinct interpretation of the parties as to the two phrases "either . . . or" and "as the case may be," in addition to the conduct of the parties, creates a genuine issue of fact as to whether the right of first offer was applicable to the Produce Building even though an option was exercised for the Grocery Building. New Breed's contention that the terminology "as the case may be" was utilized to broaden the scope of the right of first offer puts a major fact question at issue in this case. There interpretation is squarely at variance with CT INDY's position that the terminology "either . . . or" is controlling. At the very least New Breed controverts CT INDY's argument and vice versa that Paragraph 37 is unambiguous.
For all of the reasons set forth in the February 10, 2011 Memorandum of Decision and the additional findings as noted above, this court finds that the March 26, 2008 letter does not satisfy Paragraph 30 as a Notice of Availability for the right of first offer. The contractual language of Paragraph 37 and the actions of the parties during the time of negotiations and the amendments to the Lease presents a question of fact as to whether the right of first offer is not available once the Tenant exercises an option for either the Grocery or the Produce Building.
Because there is a material fact at issue and because the language is ambiguous and confusing, the court cannot find as a matter of law that the right of first offer is no longer applicable. Therefore the defendants, CT INDY and Bozzuto's, motion for judgment as to Count Four is Denied.
SPECIFIC PERFORMANCE COUNT THREE
The plaintiff, New Breed, has requested that this court grant summary judgment as to Count Three for Specific Performance. The plaintiff contends that the Lease Agreement provides for a right of first offer that the defendant, CT INDY, failed to extend to New Breed. The plaintiff also argues that the defendant should lease what has been termed the "omitted" portion of the Transportation Building and the Transportation Building they now occupy on the same terms and conditions offered to Bozzuto's. Both defendants, CT INDY and Bozzuto's, have objected to New Breed's motion and CT INDY and Bozzuto's requested summary judgment in their favor as to Count Three.
CT INDY contends that specific performance is not a proper area of relief nor is there any basis to grant specific performance in the instant action. Bozzuto's joins the argument of CT INDY as to the March 26, 2008 letter but also argues that if the court finds CT INDY breached its obligation to provide a right of first offer, specific performance will cause undue harm and thus the equities weigh against the relief.
The defendant CT INDY argues the same three reasons in opposition to the plaintiff's motion for judgment as to Specific Performance while at the same time arguing the court should grant summary judgment for the defendants on this Count. First, the defendant contends that they satisfied this provision when a letter was sent from Gianluca Montalti to New Breed's representative, David Saltzman, dated March 26, 2008 and therefore there is no breach which would support such action by the court. Second, CT INDY argues that the plaintiff lost its right to first offer when they exercised the option for the Grocery Expansion in accordance with the Lease Agreement. Lastly, CT INDY contends that even if the court believes this letter does not satisfy the provision for the right of first offer, it is of no significance because the agreement involved a right of first offer and not a right of first refusal which has a different impact. The Plaintiff's motion is contingent upon a finding of breach of contract by the defendant, CT INDY.
The arguments by the defendants in their opposition have already been addressed by the court in relation to Count Four, Breach of Contract. In order to find that the plaintiff in this instant action is entitled to specific performance, there must be not only a breach of contract that would entitled New Breed to some relief but there must also be circumstances that would enable this court to grant such equitable relief.
Specific performance is an equitable remedy permitting courts to compel the performance of contracts for sale of real property, and certain other contracts, pursuant to the principles of equity. Jaramillo v. Case, 100 Conn.App. 815, 828, 919 A.2d 1061 cert denied, 283 Conn. 902, 926 A.2d 670 (2007). [T]here is no right to specific performance, but rather [t]he granting of specific performance 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. (Internal quotation marks omitted) Pack 2000 v. Cushman, 126 Conn.App. 339, 347, 11 A.3d 181 (2011). Specific performance can be a cause of action separate from a breach of contract. Bender v. Bender, 292 Conn. 696, 701-02, 975 A.2d 636 (2009). However, in order to determine if the court should enter summary judgment in favor of the plaintiff or should enter judgment in favor of the defendants it is necessary to incorporate the breach of contract claim in Count Four. The court has already ruled that the defendant, CT INDY, did not satisfy an obligation to provide a Notice of Availability. However, the court has determined that the language in Paragraph 37 is ambiguous based upon the language itself, and the actions of the parties including the uncertainty as to the intent of the parties while amending the Lease Agreement. Based upon the decision of the court to deny summary judgment regarding the breach of contract, specific performance would not be appropriate. Bozzuto's has argued strenuously that even if the court finds that CT INDY breached the contract, it would be inequitable to them to order what it terms an "eviction" from the property. Although the court has denied summary judgment on Count Four it will address the argument of Bozzuto's in relation to its' objection concerning the inequities of entering judgment for Specific Performance.
Bozzuto's contends that the court, Robinson, J. has already found that it did not have notice of New Breed's right of first offer. However, this finding was made looking at the July 15 agreement and not necessarily the July 30 agreement after receiving correspondence from New Breed.
THE EQUITIES OF SPECIFIC PERFORMANCE
In the Bozzuto's memorandum in opposition to the motion for summary judgment as to specific performance, it argues that the impact to it would be substantial and that it is an innocent party affected by the legal arguments between Bozzuto's and CT INDY. Bozzuto's argues that New Breed cannot satisfy the elements for specific performance because it cannot prove a breach of contract by CT INDY. In this regard, Bozzuto's again argues that the March 26, 2008 letter satisfies Paragraph 37 and thus supports a finding of breach of contract. This argument has been thoroughly addressed in the motion for summary judgment on this count above and the argument rejected by the court.
The court has not granted judgment as to the claim of breach of contract because there are genuine issues of fact. However, even if a breach of contract is found, the court would have discretion in determining the claim for specific performance. Therefore, the court analyzed in this memorandum the equities of such a finding.
Bozzuto's also offers to the court an argument that New Breed did not accept the offer because they submitted a counter offer on April 14, 2008 but Bozzuto's did not fully explore the emails to see that it was not one email but a series of emails that discussed terms that can only be seen as negotiations. (See April 15 and April 22 e-mails that were ignored by the defendant Bozzuto's.)
Although not aware of the right of first offer when Bozzuto's entered into the first agreement with CT INDY it did become aware from the letter dated July 17, 2008 that New Breed claimed it had a contractual right of first offer. In Kevin Daly's deposition on behalf of Bozzuto's, he admitted that they were informed of the dispute and stated that the fact that there is litigation says to him that "there is at least a question as to "whether CT INDY was lying about the Produce Building." (Daly Depo. at 17.) There is no question that after July 17, 2008, the defendant, Bozzuto's, had actual notice that there was some type of dispute between CT INDY and New Breed. However, Bozzuto's received assurances from the owner of the property, CT INDY, that there was no right of first offer to New Breed. Bozzuto's exercised due diligence in attempts to determine the status. A search of the Land Records revealed that there was no Notice that would support the right of first offer to them. Bozzuto's requested the lease and were informed it is "confidential." Bozzuto's was further assured by CT INDY that there was no right and they included an indemnification provision in their agreement to support their position and alleviate concerns of Bozzuto's. This reliance, although in hindsight may be naive, does not rise to the level of finding they intentionally ignored the position of New Breed. In hindsight it may be easy to contend that Bozzuto's should have taken further actions to determine without question the rights of New Breed but there is a genuine issue of fact as to what they actually knew and perceived about the right of first offer when they entered into the Second Agreement with CT INDY.
The defendant, Bozzuto's, argues that specific performance will have an adverse impact upon their business operations as well as the businesses they service. The deposition testimony of Mr. Daly describes the devastating impact of the loss of the building to Bozzuto's. Mr. Daly testified that the defendant Bozzuto's has been aware for a long period of time since July 2008 of the ongoing dispute and the danger to Bozzuto's if New Breed was successful. Upon questioning, he readily admitted that their concern for three years has been that they would be kicked out. During the three years, Bozzuto's has thought about relocating and there is only the possibility of relocation to their property in Chesire which consists of 118 acres. Although there is presently no location, it is within the realm of possibility that relocation is possible to their site or a different site. (Wattenmaker Affidavit, Deposition TR. Daly at 45-46.) A relocation will not be easily accomplished because of the unique nature of the refrigerated building.
Knowing there was not only a lease agreement but that there were claims for a right of first offer, Bozzuto's entered into a lease agreement because they believed the property was available. Possibly a different approach to the claims of New Breed would have impacted the decision to lease the property but the actions of Bozzuto's were directed in part by the assurances and confidence exuded by CT INDY based upon its reading of the contract. Whether the defendant CT INDY was right or wrong in its representations is a genuine issue for the court but Bozzuto's should not be unequally penalized for its choice. The documents and affidavits which have been submitted in support and in opposition to the summary judgment leave some concern as to the continuation of the Bozzuto's business not only impacting them but impacting the merchants who utilize their services.
In balancing the equities as to specific performance the court weighs heavily the choice of Bozzuto's to continue with the Lease negotiations and its eager acceptance of CT INDY's unsupported position but is more gravely concerned about the interruption of the business in the Grocery Building and the impact on innocent third parties. Also, if Bozzuto's contentions are believed then the granting of specific performance as to them would be inequitable because they had an honest belief that there was no right of first offer.
Thus, the balancing of the equities would weigh more favorably upon Bozzuto's. Thus, with the denial of the motion for summary on Count Four and the balancing of the equities at this time, the court also denies the motion for Specific Performance on Count Three as to the Grocery Building.
The Transportation Building
The plaintiff also requests that on the motion for summary judgment as to Specific Performance, the Court find the plaintiff is entitled to occupy the "omitted" transportation space and that the same terms and conditions for the lease offered to Bozzuto's should apply to New Breed for the entire Transportation Building.
The defendant contends in their memorandum that New Breed was not offered the space that is defined as the Truck Wash, Fueling Station, and Additional Parking Spaces because such area was not part of the Transportation Building, therefore New Breed does not have a right of first offer to such areas. Additionally, the defendant contends that there is no right to the same terms and conditions offered to Bozzuto's for the Transportation Building as part of the right of first offer.
As noted above, the court has found that the right of first offer does not entitle the plaintiff to the right of the same terms to lease the property. Therefore, this argument must fail. However, the disagreement as to the space that is defined by the agreement as "Transportation Building" does create a genuine issue of fact that precludes the entry of summary judgment.
The defendant argues that the court should enter judgment in its favor that CT INDY satisfied the right of first offer to the plaintiff in relation to the space offered and the terms of the lease. The defendant contends that the description which includes approximately 12,000 sq. ft. could not include these areas. The weakness in the defendants' argument is that there is no clear written property description that would resolve specifically what is included. In fact, there is insufficient background and conflicting documents for the court to determine the specific coverage. First of all, the original agreements in this action have clearly divided the property at 300 Montowese Avenue into only three parcels for lease; the Grocery building, the Produce building and the Transportation building. There is no description of a fourth location that would include the wash basin, the fueling or additional parking spaces. All of the agreements incorporated only three lease properties. Each property is unique. The Transportation Building is described with an approximate square footage but not with a clear footprint. Because there are different depictions included with different letters of negotiation and agreements, there is a question as to what the 12,000 sq. ft. plus or minus (emphasis added) includes. At first glance it seems logical to see that it is different than the space including the wash bay, the gas tanks and other parking. However, with the discussion and negotiations to lease the Transportation center to Bozzuto's, CT INDY offered language that specifically described the Transportation Building to mean, "the building comprised of approximately 12,000 rentable square feet (including Wash Bay), with related gas tanks and equipment, located at 300 Montowese Avenue, North Haven, Connecticut, and commonly known as the "Transportation Building at the North Haven Distribution Center."
The defendant ignores this description in the very lease it negotiated with Bozzuto's. That complex includes within its perimeter the Truck Wash, the Fueling Station and the additional parking spaces. During the initial negotiations with the plaintiff for the site, the plaintiff also interpreted the Truck Wash, Fueling Station and the parking spaces to be part of the Transportation Building. It was not until the issue was raised about the right of first offer for the Grocery and Produce Buildings that there emerged what amounts to a fourth area. The position taken by the defendant in relation to what constitutes the Transportation Building is inconsistent with the language of the July 15, 2008 lease between Bozzuto's and CT INDY and the depictions that have been included as exhibits and attachments to the Lease Agreements. Even the March 26, 2008 letter leaves open the area or size and description of the Transportation Building with the notation "Subject to third party measurement" and refers to it as "entire" Transportation Building.
The parties apparently agree as to the obligation of a right of first offer for the Transportation Building to New Breed, but it is not clear whether the right includes the area containing the Truck Wash, Fueling Station and parking for the site based upon the various descriptions, site coverage, drawings and negotiations. There is a question of fact as to what area constitutes the Transportation Building that is included within the Lease Agreement and thus the court denies the motion for summary judgment for specific performance to lease what is termed as the "Omitted Transportation Building" to the plaintiff, New Breed.
IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (COUNT FIVE)
"[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 16, n. 18, 938 A.2d 576 (2008). "To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs' right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 563-64, 979 A.2d 1055, cert denied, 294 Conn. 913, 983 A.2d 274 (2009). "The definition [of good faith] requires not only honesty in fact but also 'observance of reasonable expectations of the contracting parties as they presumably intended.'" Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988). "Whether the party has acted in bad faith is question of fact, subject to the clearly erroneous standard of review." Harley v. Indian Spring Land Co., 123 Conn.App. 800, 837, 3 A.3d 992 (2010). An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements: "(1) that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; (2) that the defendant engaged in conduct that injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract; and (3) that when committing the acts by which it injured the plaintiff's right to receive under the contract, the defendant was acting in bad faith." Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 095028391 (October 19, 2009, Domnarski, J.) ( 2009 Ct.Sup. 17328).
Although the defendant Bozzuto's joined the motion for summary judgment with CT INDY, Bozzuto's alone argues for summary judgment as to the Fifth Count which is directed to actions of the defendant CT INDY. The plaintiff has alleged that the defendant CT INDY "has not dealt fairly with New Breed and has breached the covenant of good faith and fair dealing by, among other things; leasing the Produce Expansion Space and other space on the Property to another party; failing to provide New Breed with its Right of First Offer or the Landlord's Availability Notice relating to the Produce Expansion Space; offering the Transportation Building Expansion Space to New Breed on terms different from the terms offered to Bozzuto's; and otherwise failing to abide by the terms of the Lease."
Only the defendant, Bozzuto's submitted a motion for summary judgment as to this Count for breach of implied warranty of good faith and fair dealing. In particular, the defendant argues that the actions of CT INDY were such that there is a basis to enter judgment as to this claim. This court has addressed this same claim in relation to CT INDY's motion for summary judgment as to the September 9, 2009 Bozzuto's cross claim for a breach of implied warranty of good faith and fair dealing. (September 21, 2011 Memorandum of Decision.) The court noted that Bozzuto's received a letter from New Breed and were aware that there was a challenge by New Breed contending it had a right of first offer. The claim was discussed amongst the parties and Bozzuto's attempted to investigate the claim on its own. However, throughout the entire period of time CT INDY was adamant that it had the right to lease the Produce Building and that there was no right of first offer. This disagreement is embodied in the breach of contract claim in which CT INDY and New Breed strongly contend there is a different interpretation of Paragraph 37.
After a review of the claims and the very same evidence in this cause of action, the court denied CT INDY's motion for summary judgment as to the cross-claim determining that there are genuine issues of fact to be determined as to the intent of CT INDY and whether they acted in good faith.
The defendant Bozzuto's provides a very cursory argument as to this Count and only repeats its earlier argument that the defendant CT INDY provided a right of first offer in the March 26, 2008 letter. Because the court has found that the letter is not a right of first offer as claimed by the defendants, this argument must fail. Bozzuto's does not address the arguments countered by the plaintiff nor address the elements necessary to find a breach of implied covenant of good faith and fair dealing to support its position for summary judgment. There is a disagreement as to the intent of CT INDY and whether its' interpretation of the Lease will prevail. It is not clear from the documents now before this court that any party was clear as to whether there existed a continuing right of first offer in accordance with Paragraph 37. There are genuine issues of fact related to the very existence of this paragraph and what CT INDY knew.
The motion for Summary Judgment as to Count Five is denied.
CONNECTICUT UNFAIR TRADE PRACTICES ACT (COUNT SIX)
Count Six is a claim pursuant to the Connecticut Unfair Trade Practices Act ("CUTPA"). The Act, General Statutes § 42-110b(a) provides that "[n]o person shall be engaged in unfair methods of competition and unfair or deceptive acts or practices in the deceptive acts or practices in the conduct of any trade or commerce . . . To enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [p]rohibited method, act or practice . . ." Neither of the parties have addressed the issue of general business practice in addressing the instant motion. For purposes of the motion, this court finds that the defendant, CT INDY, is involved in the general business of commercial transactions.
The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce . . . In determining whether certain acts constitute a violation of CUTPA, our Supreme Court has adopted the criteria set out in the Federal Trade Commission's cigarette rule: (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, otherwise — whether, 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 businessman] . . . Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005). All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because, to a lesser extent it meets all three. Thus, a violation of CUTPA may be established by showing either an actual deceptive practice or a practice amounting to a violation of public policy. Notably, not every contractual breach rises to the level of a CUTPA violation. In the absence of aggravating unscrupulous conduct, mere incompetence does not by itself mandate a trial court to find a CUTPA violation. Landmark Investment Group, LLC v. Chung Family Partnership, LLC, 125 Conn.App. 678, 10 A.3d 61 (2010). The instant Amended Complaint contains a CUTPA claim against the defendant CT INDY. This Count does not allege a cause of action as to the defendant Bozzuto's. It is solely a cause of action as to the defendant CT INDY. The CUTPA claim incorporates the factual allegations in Count One which discusses the interaction between Bozzuto's as well as CT INDY. Bozzuto's contends that the claims of the CUTPA violation are "incorrect" because CT INDY provided a right of first offer in the March 26, 2008 letter which offer New Breed rejected. Bozzuto's does not address the specific facts alleged in relation to the claim by New Breed. There is a genuine issue of fact as to whether the action of CT INDY in the leasing of the Produce Expansion and the "Omitted" Transportation Center to Bozzuto's was a business practice that ignored the Lease Agreement and offended public policy as it has been established by statutes, common law or otherwise. The court has denied the motion for summary judgment on the breach of contract and implied covenant of good faith and fair dealing finding issues of fact need to be decided. Therefore, since this claim is premised upon a finding of a breach of contract there is no unfair trade practice that would satisfy the beginning analysis of the CUTPA claim. Bozzuto's argument is shallow and lacks any support. Therefore, the court denies Bozzuto's motion for judgment as to Count Six.
Only Bozzuto's includes Count Six within its motion for summary judgment. The defendant CT INDY does not seek summary judgment as to this count.
INJUNCTIVE RELIEF COUNT ONE
The defendant CT INDY has filed a motion for summary judgment as to the First Count. The defendant argues that the court should grant judgment as to it regarding the claim for injunctive relief. CT INDY does not address the legal elements for a claim of injunctive relief and instead requests that the court make certain findings as to the defendant's apparent claim for relief. The First Count of the Amended Complaint alleges that "New Breed will suffer and has suffered significant and irreparable harm for which there is no adequate remedy at law if CT INDY is permitted to lease or give possession of the Produce Expansion and other space on the Property to Bozzuto's including the Omitted Transportation Building Space and the Utility Room, in that New Breed will have been deprived of the contractual Right of First Offer, and CT INDY will have unilaterally changed the terms of the Lease and deprived New Breed of possession of the Produce Expansion Space and other space on the Property for use in connection with the operation of its business." (First Count, Paragraph 37.) The defendant requests that the court enter judgment that CT INDY is not required to offer New Breed the Produce Building and Omitted Transportation space nor to offer the Produce and Transportation Buildings on the same terms offered to Bozzuto's, and that the defendant can lease the Omitted Transportation Building Space because New Breed has no basis to claim it is entitled to the space.
The standard for granting a temporary injunction is well settled. "In general, a court may, in its discretion exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no remedy at law." Moore v. Ganim, 283 Conn. 557, 569 n. 25, 660 A.2d 742 (1995). The primary purpose of a temporary injunction is to maintain the status quo until the rights of the various parties can be sorted out, after a hearing on the merits. Clinton v. Middlesex Assurance Co., 37 Conn.App. 269, 270, 685 A.2d 814 (1995). The temporary injunction is a preliminary order, granted at the outset or during the pendency of an action, forbidding the performance of matters such as threatened act . . . until the rights of the parties can be finally determined by the court. Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912). A party seeking injunctive relief must demonstrate: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tip in its favor. Waterbury Teacher's Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994), Danso v. University of Connecticut, 50 Conn.Sup. 256 [ 42 Conn. L. Rptr. 697] (2007).
The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm and the lack of adequate remedy at law. Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004), aff'd. 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). Schlichting v. Cotter, 109 Conn.App. 361, 952 A.2d 73 (2008). Moreover, "[t]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction if not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980). Whether or not the plaintiff is entitled to relief is determined, not by the situation existing at the time of the alleged violations, but by that which has developed at the time of trial. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 419, 17 A.2d 525 (1941). Edson v. Griffin Hospital, 21 Conn.Sup. 55, 63-63, 144 A.2d 341 (1958).
Neither of the parties has provided argument to the court that properly addresses the claim for injunctive relief. The plaintiff has failed to respond to the argument that summary judgment should be entered for the defendant on this Count although the plaintiff has addressed the motion for summary judgment as to the remaining claims including breach of contract. The defendant has requested not only that the court grant judgment to CT INDY on the first count but that the court make findings that provide a final determination as to the claims for breach of contract, breach of the implied covenant of good faith and fair dealing and the claim of violation of the Connecticut Unfair Trade Practices Act.
The court has addressed the summary judgment motion of CT INDY and Bozzuto's related to each of these claims and has denied the motion for summary judgment as to each of the Counts as noted above. It has not been demonstrated or argued that New Breed is likely to be successful or that there is no adequate remedy at law. The court utilizes the arguments and the court's analysis of the Counts in determining whether summary judgment should be entered for the defendant on this Count. Therefore, the motion for summary judgment as to Count One is denied because there is a genuine issue of material fact as to whether the plaintiff is likely to prevail on its claims of breach of contract, breach of the implied covenant of good faith and fair dealing and the violation of Connecticut Unfair Trade Practices Act.
DECLARATORY JUDGMENT (COUNT TWO)
The defendants have requested judgment as to the New Breed's claim for a declaratory judgment. Count Two requests that the court issue a declaration that: "(a) CT INDY must provide it with the Right of First Offer in accordance with the terms of the Bozzuto's Lease before Bozzuto's can take possession of or lease any space on the Property; (b) New Breed is entitled to take possession of and lease the Produce Expansion and the Omitted Transportation Space on the terms set forth in Bozzuto's Lease and/or as required by the terms of the Lease; and (c) New Breed has the right to the exclusive use and right to quiet enjoyment of the entire Transportation Building without interference or use of the space by Bozzuto's or other third party."
Declaratory judgments are governed by Conn. Gen. Stat. § 52-29 and the Connecticut Rules of Court § 17-54 et seq. The Conn. Pr. Bk. § 17-55 sets forth the following conditions for a declaratory judgment: "(1) the party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) there is an actual bona fide and substantial uncertainty or legal relations which requires settlement between the parties; and (3) in the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." Trial Courts are afforded wide discretion in rendering declaratory judgment. Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 83, 571 A.2d 153 (1990). A declaratory judgment action, remedial in nature should be liberally construed. Horton v. Meskill, 172 Conn. 615, 627, 376 A.2d 359 (1977).
Both defendants, CT INDY and Bozzuto's, have argued that the court should grant summary judgment for them on the request for a declaratory judgment. Bozzuto's argues that New Breed cannot satisfy the second element based upon the premise that the court will rule that there is no breach of contract and therefore there is no longer an actual or bona fide and substantial question or issue in dispute, or substantial uncertainty of legal relations which requires settlement. As noted above, this court has denied the defendants' motion for summary judgment on Count Four for a breach of contract as well as other claims of the plaintiff.
However, it is noted that this court, Robinson, J., entered an Order on December 9, 2009 denying the declaratory judgment stating "A declaratory judgment in this action, as the Plaintiff requests could result in the interruption of a multi million dollar contract between Bozzuto's and CT INDY." Since the issuance of that order there has been no evidence or testimony that would change the court's ruling. The defendant, Bozzuto's has presented argument of the enormous negative impact such an eviction would have upon them and their business. The plaintiff contends that it, too, is affected by the inability to expand to the Produce Building within the complex and the inability to use the omitted transportation space as well as the impact of the defendants' attempts to get access to the utility room.
The impact upon Bozzuto's and New Breed is a matter that requires a balancing by the court and may very well be impacted upon the conclusion of the trial in this matter. Because of the potential impact and the uncertainty at the present time the court denies CT INDY's motion for summary judgment as to Count Two.
CONCLUSION
Based upon the above, the motion for summary judgment by the defendant 'Bozzutos' is denied as to Counts Two, Three, Four, Five and Six.
The motion for summary judgment by the defendant CT INDY is denied as to Counts One, Two, Three and Four.
The motion for summary judgment by the plaintiff New Breed as to Count Three is denied.