LLC v. Calco Construction & Development Co. et al (2010)

RULING RE CALCO DEFENDANTS' MOTION TO STRIKE # 122

1. This case arises out of a failed commercial real estate transaction as a result of which the plaintiff, the unsuccessful prospective buyer, has filed a complaint against his corporate and individual realtor, the Calabrese defendants, and another interested buyer, the Calco defendants, alleging that the defendants tortiously interfered with the contractual relationship that the plaintiff had with the seller, the Chung family.   The plaintiffs have brought a four-count revised complaint dated March 13, 2010, (# 114) against the defendants based upon theories of tortious interference with contractual relations, violation of the Connecticut's unfair trade practices act (CUTPA) and civil conspiracy.   The Calco defendants, specifically, the corporation named in the caption, and John A. Senese, its president, have filed a motion to strike each of the three counts lodged against them, each of which is based on one of the above causes of action.

2. A more specific recitation of the underlying facts is provided in a memorandum of decision authored by Judge Swienton on April 20, 2010, which denied a motion to dismiss filed by the Calabrese defendants.   At short calendar on June 22, 2010, this court recited in detail the specific allegations made by the plaintiff in its revised complaint.

3. After reviewing the entire file, including the pleadings, the motion to strike and accompanying memorandum filed by these defendants, the oppositional memorandum filed by the plaintiff and after considering the arguments of counsel, the court will grant the motion to strike filed by these defendants in its entirety.

4. During the argument at short calendar the parties agreed that all three counts lodged by the plaintiff against the Calco defendants were founded upon the factual allegations contained in the plaintiff's first count, which is based upon a claim that these defendants, who were in competition with the plaintiff and who were also interested in the purchase of the subject commercial property, tortiously interfered with the business relationship between the plaintiff and Chung.   The parties therefore agreed that if the court were to strike the first count from the plaintiff's substituted complaint that the third count (CUTPA) and the fourth count (civil conspiracy) must likewise be stricken.

5. This court, upon a thorough review of those allegations, finds that the plaintiff has not pleaded sufficient facts which would support any of the causes of action alleged against the Calco defendants.

6. In paragraph # 10 of the first count, the plaintiffs allege:  “All defendants acted in concert in an attempt to induce Chung to breach its contract ․,” however, there are no specific facts alleged against the Calco defendants to justify that conclusion.   Paragraph # 11 deals strictly with the defendant Ralph Calabrese.   In paragraph # 12 the plaintiff alleges that the “defendants [unidentified] sought to take advantage of the fact that Chung was having financial troubles by offering a more attractive deal with a quick closing date.”   Certainly, one interested in buying a parcel of property has a right to approach the seller to let the seller know that there is a backup buyer ready, willing and able to make the purchase in the event that the contractual prospective buyer cannot complete his obligations under the agreement.   Such an occurrence does not give rise to a claim of tortious interference, which requires the plaintiff to factually plead and to prove at least some improper means consisting of fraud, misrepresentation, malice or intimidation.  Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 479, cert. granted on other grounds, 258 Conn. 917 (2001).   Appeal dismissed, June 25, 2002.   In paragraph # 13, the plaintiff alleges:  “The defendants [unidentified] interfered with the contractual relationship between Chung and the plaintiff in an attempt to undermine Landmark's ability to develop the property as it so desired.”   Again, however, the plaintiff does not provide any factual predicate to justify and support that conclusion.   Finally, in paragraph # 14 the plaintiff alleges:  “Landmark is a direct competitor of the defendants CALCO and John Senese and defendants CALCO and John Senese undertook the conduct complained of herein with the intent to harm or damage Landmark's pending business dealings pertaining to the Property.”   Emphasis added.   That allegation, however, is lacking of any factual predicate to justify the conclusion reached;  there are no specific acts attributable to the Calco defendants which would support this conclusionary allegation.

7. This court recognizes its obligation, when considering a motion to strike, to construe all well-pleaded facts and those necessarily implied from the facts alleged in a light most favorable to the party opposing the motion, in this case, the plaintiff.  Gazo v. Stamford, 255 Conn. 245, 260 (2001).   However, in following this directive, the court, nevertheless, is compelled to conclude that the requisite factual predicate upon which the three challenged counts are based is severely lacking.   With regard to the Calco defendants, the plaintiff simply advances generalized conclusions and opinions without providing the court with any factual basis to support them.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).   Since the allegations which comprise the first count of the plaintiff's revised complaint are the foundation upon which all of the counts brought against the Calco defendants are based, the court is compelled to strike all three counts against these defendants.   The motion to strike (# 122) is therefore granted.   The plaintiff's objection thereto (# 125) is overruled.

Wilson J. Trombley, Judge

Trombley, Wilson J., J.