LLC v. Calco Construction & Development Co. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT (# 270)

This is a case involving rival developers regarding a real estate contract gone bad, and it went bad not because of the conduct of the defendants, but rather because the plaintiff, when awarded specific performance and told by the Appellate Court to “either terminate the agreement or to close immediately on the property,” it did neither.  Landmark Investment Group, LLC v. Chung Family Realty, 125 Conn.App. 678, 696, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011) (hereinafter referred to as Chung I ).   Instead, the property was sold at a public foreclosure sale, and this suit ensued.¹

I

STATEMENT OF THE CASE

The plaintiff, Landmark Investment Group, LLC (“Landmark”), instituted these proceedings against the defendants, Calco Construction & Development Company (“Calco”), John A. Senese, owner and president of Calco, R. Calabrese Agency, LLC, and Ralph Calabrese on September 16, 2009, due to a failed real estate transaction concerning commercial real estate known as 311–349 New Britain Avenue in Plainville (the “Property”), between the plaintiff, Landmark, and Chung Family Realty Partnership, LLC (“Chung, LLC”).  Landmark filed an application for a prejudgment remedy against the defendants, Calco and Senese, and after a full evidentiary hearing, the court denied the application, which judgment was affirmed by the Appellate Court.  Landmark Investment Group, LLC v. Calco Construction & Development Company et al., 141 Conn.App. 40, 60 A.3d 983 (2013).

On March 22, 2013, the action was withdrawn as to the Calabrese defendants.   At trial, the court allowed the plaintiff to amend the third revised complaint, in order to conform to the proof as well as to streamline the complaint by removing the counts against the two defendants no longer parties in the matter.

The first count is against Calco and Senese, alleging interference with contractual relations, claiming that Calco and Senese interfered with the purchase and sale agreement between Landmark and Chung, LLC. The second count alleges a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) against Calco and Senese.

The case was tried by a jury.   The jury was given instructions and provided with interrogatories as well as verdict forms.   After six days of trial, and the admission of fifty-two (52) exhibits, the jury deliberated for one hour and forty minutes.   The jury rendered a verdict in favor of the plaintiff in the amount of $4 million, finding that both Calco and Senese had tortiously interfered with the contractual relations between Landmark and Chung, LLC, and that, in doing so, they had violated CUTPA.²

Pending before the court is the defendants' postjudgment motion for judgment notwithstanding the verdict (# 270).   For the following reasons, the motion is granted.³

II

FACTUAL BACKGROUND

In the memorandum of decision in the Appellate Court case affirming the denial of the prejudgment remedy, the following facts are set forth.⁴

“The plaintiff and Chung, LLC, were parties to a purchase and sale agreement [plaintiff's agreement], involving property located at 311–349 New Britain Avenue, Plainville, Connecticut [property].   Chung, LLC, had acquired the property in 1999, but was unable to develop it successfully due to the possible environmental contamination.   The original contract between [the plaintiff] and Chung, LLC, was renegotiated when the plaintiff learned that Chung, LLC's consultant had derived an estimate that it would cost $1.3 million to perform the required environmental remediation at the site.   This led to a second contract signed in June 2005, which required Chung, LLC, to escrow most of the purchase price, and allow[ed] the plaintiff to effectuate the environmental remediation in accordance with a timetable set forth in the [plaintiff's agreement].   Also, to aid in covering the cost, the [plaintiff's agreement] provided that the parties would apply to the Connecticut brownfields redevelopment authority [brownfields] for cleanup funding.

“Due to various delays in producing a remediation plan and submission of the loan application to brownfields, caused mainly by Chung, LLC's lack of funds, the town of Plainville [town] caused a study to be performed.   The town hired a different licensed environmental professional, Tighe & Bond, which resulted in a report that the premises could be cleaned up and remediated for $265,000.   This led the town to decide that it would no longer participate in the brownfields funding application since it determined that the cost was low enough that the developer could afford to conduct the remediation.   Chung, LLC, and its attorney, Peter Barry, became concerned because it was ․ Barry's opinion that the absence of the brownfields funding would make the [plaintiff's agreement] impossible to perform since the time lines in the [plaintiff's agreement] were tied to the approval of the brownfields funding application.   It was ․ Barry's professional opinion that the [plaintiff's agreement] would need to be renegotiated.

“A meeting was held on September 7, 2006, with ․ Barry, Henry Chung, [the owner and manager of Chung, LLC], Ralph Calabrese ․ the listing real estate broker, Glenn Russo ․ [the plaintiff's] executive manager, and ․ Michael Tansley [the plaintiff's attorney].   At that meeting, a heated discussion took place, and Chung, [Barry] and Calabrese took the position that the contract was null and void.   Calabrese communicated that Chung wanted to renegotiate the [June 2005] contract with a lower contract sales price in light of the lowered remediation cost, as well as removing all conditions.  [The plaintiff] did not agree and took the position that the [June 2005] contract was still in effect and would not agree to the elimination of the contingencies.   Russo had no faith in the Tighe & Bond report, and its estimate of the cost of the remediation.   Chung, LLC, gave [the plaintiff] the opportunity to purchase the property outright, with no conditions at a significantly lower price of $1.8 million.   The meeting ended with Russo walking out of the room.   Thereafter, an exchange of correspondence took place and on October 27, 2006, Barry sent a letter to [the plaintiff] terminating the [June 2005] contract ․

“[The plaintiff] brought suit to determine the propriety of the termination of the contract by Chung, LLC, and in Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, [Superior Court, judicial district of New Britain, Docket No. CV–07–5003201–S (August 19, 2009) ], the trial court found that Chung, LLC, had wrongfully terminated the [June 2005] contract, and the finding and decision was affirmed [on appeal].  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, [125 Conn.App. 678, 708, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011) ].

“During the same time frame ․ Senese, a developer with significant history and experience in the area of commercial real estate development, was also making inquiries into the purchase of the property.   Senese was familiar with the property as he had driven by it many times and saw the for sale sign directing inquiries to [R. Calabrese Agency, LLC]. He began to make inquiries into the property around December 2005, and contacted Calabrese.   Calabrese gave Senese the details with regard to the property, including the fact that the premises [was] under contract.  [Calabrese and Senese had no business or personal relationship prior to this time.]   In January 2006, Senese with the assistance of Calabrese drew up a letter of intent in the name of Calco, with Senese's terms and conditions as a ‘backup’ offer.   Calabrese presented the backup offer to Chung, LLC, which was never signed, and it eventually expired.   Senese was aware there was another purchase[r] and a contract but never saw a copy.⁵

“Even though the January 2006 offer was not accepted, Senese continued to have interest in the property.   Senese became aware of Tighe & Bond's report, which was prepared for the town ․ and available from the town, and met with them in August 2006, on the premises to better understand the findings of the report.   As a result of his inspection of the property and review of the report, Senese was satisfied with the environmental [report] of Tighe & Bond. He had conversations with Calabrese about the environmental cleanup costs, and Calabrese conveyed to Senese what ․'Chung would want' ․ Senese determined the terms of Calco's offer, and asked Calabrese to submit another letter of intent to Chung, LLC, on behalf of Calco.   The September 21, 2006 offer was also prepared by Calabrese based upon terms offered by Calco.   The offer lowered the price to $1.8 million and eliminated the contingencies contained in the first letter of intent.   Calabrese arranged a meeting with Senese and Barry, as well as ․ Chung and members of his family.   Senese believed Chung liked his offer with no contingencies, but at that meeting Senese was unaware of the status of the [plaintiff's agreement] or of Chung's intention to terminate [it] ․ Senese was told by ․ Barry that they would ‘get back to [him] and if [they] proceed, [they] will draft a contract’ ․

“That meeting gave rise to a proposed contract prepared by Barry which was executed by Senese on behalf of Calco, but never signed by Chung, LLC ․ The proposed contract listed the price at $1.8 million, $450,000 less than the $2.25 million agreed to be paid by [the plaintiff], and specifically recognized that [the plaintiff] had a prior claim which might give rise to a lawsuit.   Barry advised Chung to wait until after the first of the year before signing any agreement with another developer as it was his belief that if suit had not been brought by that time, Chung, LLC, would be free to sign a new contract with another developer whose offer was acceptable.

“Senese learned through his own attorney, who had performed a title search on the property, that a lis pendens had been filed on the land records by [the plaintiff].   Four months after the institution of the lawsuit, by [the plaintiff] against Chung, LLC, Calco and Chung, LLC, entered into an agreement, dated March 7, 2007, to purchase the [property].   The March agreement was specifically contingent upon the successful completion of the lawsuit in Chung, LLC's favor and the release of the contract and lis pendens on the land records by [the plaintiff].   Senese was aware that there were first and second mortgages ․ on the property and [of] their default status, and in April 2007, purchased these mortgages from the purchase money mortgagees.   Senese, an experienced and savvy business man, saw an opportunity for a business investment.   The Chungs were paying interest at 8.5 percent and [Senese] acquired a first and second mortgage on the premises at a slight discount, which mortgages were secured by real estate that Senese thought had substantial value.

“Senese, aware of the Chungs' financial situation, also agreed to loan Chung, LLC, money for its legal fees during the first trial.   Again, seeing a good investment of his money, Senese loaned Chung the money, at [10] percent interest, which loan was well collateralized by a mortgage on the [property] as well as property owned by Chung, LLC, in Manchester.   Subsequent to the termination of the trial in which Chung, LLC, was not successful, Senese paid no further legal fees.⁶

“In [December], 2010, [in Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, supra, 125 Conn.App. 708] the Appellate Court affirmed the judgment [of the trial court] in favor of [the plaintiff], and [the June 2005] contract was restored.   Although [the plaintiff] had been given [its] requested relief of specific performance, [it] neglected to exercise it.   Ultimately, [the plaintiff] lost the opportunity to purchase and develop the property because its interest was foreclosed out by the town ․ which [had] instituted an action to foreclose its tax liens.   The foreclosure action was commenced on April 14, 2010.   Under the [plaintiff's agreement], Chung, LLC, had an obligation to keep the taxes current.  [The plaintiff] attempted to buy the tax liens from [the town], but since the town was faced with competing offers, it elected not to sell the tax liens to anyone.  [The plaintiff] offered to fund Chung, LLC, money to pay the tax liens conditioned on Calco being willing to subordinate its first and second mortgage position to a first mortgage in favor of [the plaintiff].   Calco would not agree.   On March 19, 2011, a foreclosure sale was held on the property, and the successful bidder was a company [named] 311 NB Plainville, LLC, a company formed by Senese.   The price was $1.3 million ․ [N]o person on behalf of the plaintiff had attempted to bid on the property.”  (Citations omitted.)  Landmark Investment Group, LLC v. Calco Construction and Development Company et al., supra, 141 Conn.App. 41–47.

At the trial, the evidence differed from the PJR hearing only in the following respects.   The court heard from two additional witnesses, Henry Chung, principal of Chung, LLC, and Attorney William Hamzy, the attorney who represented Chung, LLC in the 2011 meetings with the plaintiff and his attorney.   Hamzy testified that prior to the foreclosure auction being held, he met with Russo, Landmark's executive manager, and Landmark's attorney.   In a letter to Landmark's attorney, he stated that the only viable way to avoid the foreclosure sale was for the outstanding taxes and associated costs to be paid in full without delay.   Hamzy confirmed that Landmark would lend the money for the taxes only upon the condition that it be granted first position which would require a subordination of the two mortgages held by Calco.   Since that was not acceptable to Calco, Hamzy reiterated in a subsequent letter dated March 15, 2011, that Chung remained “willing to sell the property to [Landmark,] however ․ [Landmark] was not interested in exercising its right to accelerate the timelines and close on the property prior to the foreclosure sale nor is it interested in modifying the existing contract.”  (Defendants' Exh. NN.)

On March 17, 2011, Hamzy wrote again to Landmark's counsel.   He stated that Chung, LLC “remains willing to sell the property to your client immediately pursuant to the existing contract.   Conveying the property for the contract price of $2.25 million and paying off all of the liens on the property would leave approximately $1 million which could be deposited into an escrow account for the remediation.   This would be more than enough to cover the cost of remediation which was estimated to be $265,000.”  (Defendants' Exh. OO.) Landmark did not accept this.

There was nothing new or different in Chung's testimony.   Chung confirmed Senese's testimony that he and Senese met only one time prior to October 2006, and that was when Senese went to examine the property and Chung opened the gate to let him in.   He also confirmed that he did not have any discussions with Senese prior to their meeting in October 2006.

The foregoing facts are substantially undisputed.   It is the applicable law which gives rise to this dispute;  i.e., whether in Connecticut we recognize tortious interference as a continuous tort, or whether, once the cause of action accrues, conduct after that point is irrelevant to the plaintiff's claim.

III

DISCUSSIONASTANDARD

Pursuant to Practice Book § 16–37, the defendants move the court to set aside the verdict in favor of the plaintiff and enter judgment in favor of the defendants notwithstanding the verdict.   At the close of the plaintiff's case, the defendants moved for a directed verdict to which this court reserved judgment.  “[A] motion notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict.”  (Citations omitted;  internal quotation marks omitted.)  Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001).

General Statutes § 52–228b and Practice Book § 16–35 provide for motions to set aside the verdict to remedy erroneous jury verdicts.   The standard of review governing such motions is well settled.  “The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ․ that, in the absence of clear abuse, we shall not disturb.”  (Citations omitted;  internal quotation marks omitted.)  Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).

“[A] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied.”  Sargis v. Donahue, 142 Conn.App. 505, 511, 65 A.3d 20 (2013).   The court “must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial.”  Craine v. Trinity College, 259 Conn. 625, 635, 791 A.2d 518 (2002).  “Judgment notwithstanding the verdict should be granted only if [the court] find[s] that the jurors could not reasonably and legally have reached the conclusion that they did reach.   If the jury, however, without conjecture could not have found ․ an element of the claim, the verdict on the claim cannot withstand a motion for judgment notwithstanding the verdict ․ Consequently, the plaintiff must produce sufficient evidence to remove the jury's function from the realm of speculation.”  (Citations omitted.)  Id., 636.  “When an element necessary to a cause of action cannot be established without conjecture, the evidence presented cannot withstand a motion for a directed verdict.   Moreover, it is well established that, although the jury is entitled to disbelieve any evidence, it may not draw a contrary inference on the basis of that disbelief.”  Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979) ( “[w]hile it is true that it is within the province of the jury to accept or reject a defendant's testimony, a jury in rejecting such testimony cannot conclude that the opposite is true”).

“[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as [an added] juror ․ but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.”  (Internal quotation marks omitted.)  Hunt v. Prior, 236 Conn. 421, 429 n.21, 673 A.2d 514 (1996).  “In reviewing the action of the trial court in denying [or granting a motion] ․ to set aside the verdict, our primary concern is to determine whether the court abused its discretion ․ The trial court's decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to [the] evidence.   Moreover, the trial judge can gauge the tenor of the trial, as [this court], on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury ․ It is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ․ palpably against the evidence.”  Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

The standard of review governing a motion for judgment notwithstanding the verdict is the same as that governing a motion for a directed verdict because it is a renewal of the motion for directed verdict.  Gagne v. Vaccaro, supra, 255 Conn. 400.  “A directed verdict is justified if, on the evidence the jury could not reasonably and legally reach any other conclusion ․ or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.”  (Citations omitted.)  Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986).

“Section 16–37 of the Connecticut Practice Book provides that:  After the acceptance of a verdict and within the time stated in [§ ]16–35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict ․

“A motion for a directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict ․ Because the motion is the renewal of a motion for a directed verdict, the grounds for granting it are the same as for a motion for a directed verdict ․ When there is evidence to support the verdict, the trial judge should deny the motion, even though it appears that the jury must have disbelieved some of the plaintiff's own testimony in arriving at a plaintiff's verdict.   If a verdict was returned, the trial court may allow the judgment to stand or may set the verdict aside and either (1) order a new trial or (2) direct the entry of judgment as if the requested verdict had been directed.   The choice of a new trial or the entry of judgment is for the trial court to make in the exercise of its discretion.   This discretion should be exercised in favor of an order for a new trial if circumstances for which a party is not at fault have resulted in his failure to present the evidence which is lacking in his case and it appears that the necessary evidence will in reasonable probability be available on a retrial ․ [W]here such conditions are not present, there is no justification for permitting a new trial.”   R. Yules, 6 Connecticut Practice Series:  Connecticut Trial Practice (2d Ed.2000) § 11.31, p. 452–53.

B

TORTIOUS INTERFERENCE

The defendants, Calco and Senese, move for judgment as a matter of law on the plaintiff's tortious interference with contractual relations claim on the ground that once the cause of action for tortious interference accrues, subsequent conduct is irrelevant.   That is to say, the tort is the conduct which gives rise to the breach of the contractual relationship between the plaintiff and a third party.

“Our Supreme Court has long recognized a cause of action for tortious interference with contract rights ․ The essential elements of such a claim include ․ the existence of a contractual or beneficial relationship and that the defendant, knowing of that relationship, intentionally sought to interfere with it;  and, as a result, the plaintiff claimed to have suffered actual loss ․ For a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious.   This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ The burden is on the plaintiff to plead and prove at least some improper motive or improper means ․ on the part of the defendant ․ The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification.”   (Citations omitted;  internal quotation marks omitted.)  Landmark Investment Group, LLC v. Calco Construction & Development Company et al., supra, 141 Conn.App. 50–51.

“While [the] cases have not focused with particularity on what acts of interference are tortious ․ not every act that disturbs a contract or business expectancy is actionable.”  (Internal quotation marks omitted.)   Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983) (“In the terminology of the Restatement [ (Second) of Torts], the test is whether the actor's behavior is improper”).   Restatement (Second), Torts § 767 (1979) sets forth seven factors in determining whether the interference is improper.  “In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:  (a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties.” ⁷ ,⁸

In Connecticut, there is no clear difference between tortious interference with contractual relations and tortious interference with prospective economic advantage.  Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21, cert. denied 247 Conn. 905, 720 A.2d 516 (1998) (“It has long been considered tortious either to induce a breach of contract or to interfere with financial expectancies.   Unfortunately, courts have tended to confuse these two types of actions, and there is no clear enumeration of their requisite elements.   However, it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties.”  Id. Thus, the issue in this case is whether the defendants wrongfully (tortiously) interfered with the contractual relations established between Landmark and Chung, LLC.

1. “CONTINUING BREACH”

As a threshold issue, the defendants argue that the jury's verdict is against the law because a “continuing breach theory” as asserted by the plaintiff cannot be applied in a case premised on tortious interference with contractual relations.   Accordingly, the defendants argue because the contract was breached on October 27, 2006, when Chung's termination letter was sent;  (See Termination Letter, Pl.'s Ex. 3);  any subsequent conduct, as a matter of law, cannot constitute tortious interference with contractual relations.   In response, the plaintiff contends that the jury could and did reasonably infer and find that Chung, LLC, through its principal and agents, were actively working with defendants prior to the issuance of the October 27, 2006, letter and that Chung, LLC's initial and thereafter continued refusal to perform under the Landmark contract was due to the defendants' wrongful interference.   Additionally, the plaintiff argues that even if this court determines, as a matter of law, that ‘post-breach conduct’ cannot support a claim of tortious interference, defendants' motion for a judgment notwithstanding the jury's verdict must still be denied.   This is so because there is no basis to hold that the jury necessarily found that the defendants' tortious conduct up to and including the activities that occurred in March 2007, were ‘post-breach.’   To the contrary, the jury could have reasonably and properly found, as a matter of fact, that Chung, LLC did not unequivocally ‘breach’ the Landmark contract until March 2007.⁹  The flaw in this argument is that breach is a question of law;  (i.e., when the cause of action accrues);  not fact, and it has been previously adjudicated that the breach occurred October 27, 2006.   See, Chung I, Docket No. CV 07–5003201 (August 19, 2009, Dunnell, J.);   and affirmed by the Appellate Court.  Chung I, supra, 125 Conn.App. 678.

The court agrees with the defendants' argument that a “continuing breach theory” cannot be applied in a tortious interference with contractual relations case.   As the court instructed the jury, “[a] claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct.”  (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d 1059 (2000).   The plaintiff cites no case law to support the proposition that tortious interference can occur after the contractual relations at issue have ended, and the court is not aware of any case law in support.

Furthermore, the parties stipulated, and the court specifically instructed the jury to accept as fact that “on October 27, 2006, Chung, LLC breached the purchase and sale agreement with Landmark dated June 30, 2005.”   This fact was found by the Superior Court;  (Chung I, supra, Superior Court, Docket No. CV 07–500320);  and affirmed by the Appellate Court.  Chung I, supra, 125 Conn.App. 678.   Any subsequent conduct could not constitute tortious interference with a contract that was already broken.   Therefore, the jury could not have found, consistent with the law, that Chung, LLC did not unequivocally breach the contract until March 2007, and any such findings would require the court to set aside the verdict.¹⁰

The plaintiff further argues that Chung, LLC had an existing contractual relationship with Landmark and a continuing duty to perform his obligations to the plaintiff.   As a result, the defendants had an obligation to refrain from conduct which intentionally and improperly interfered with that relationship.   Landmark goes on to argue that Chung's October 27, 2006 letter, did not end their relationship or Chung's contractual duties to Landmark.

The concept of “continuing breach” or “continuing course of conduct” has been asserted in efforts to extend the statute of limitation in situations where the conduct of a defendant has been concealed, and where the defendant was in a special relationship with the plaintiff which imposed upon the defendant a continuing duty.   These cases are relevant because they determine when the cause of action for tortious interference accrues.

Although the court's research reveals no binding authority directly on point, under New York law, tortious interference with a contract is not a continuing tort for purposes of extending any statute of limitations.  “New York's continuing tort doctrine does not extend the limitations period for any continuing pattern of tortious conduct, but rather is limited to certain recognized torts that involved continuing harm ․ Tortious interference with contract is not a continuing tort ․” (Citation omitted;  internal quotation marks omitted.)  Conte v. County of Nassau, United States District Court, Docket No. 06 CV–4746 A(JFB)(ETB) (E.D.N.Y., July 26, 2013).   See, e.g., Spinap Corp. v. Cafagno, 302 A.D.2d 588, 588, 756 N.Y.S.2d 86 (2d Dep't 2003) (“Since tortious interference with contracts is not a continuing tort, it does not avail plaintiff to argue that [defendant] continued to solicit its customers up until the time of the filing of the complaint ․” [emphasis added] );  See, also, Chevron Corp. v. Donziger, 871 F.Sup.2d 229, 258 (S.D.N.Y.2012) (“Chevron's attempt to avoid the bar of the statute of limitations by asserting that any tortious interference is ongoing fails because tortious interference with contract is not a continuing tort” [internal quotation marks omitted] );  and Bloomfield Building Wreckers, Inc. v. City of Troy, 41 N.Y.2d 1102, 1103, 396 N.Y.S.2d 359, 364 N.E.2d (1977) (explaining that the wrongs alleged in a complaint for wrongful interference with the performance of the contract are not continuing torts).

“The continuing tort doctrine provides that, in certain tort cases involving continuous or repeated injuries, the statute of limitations accrues upon the date of the last injury and that the plaintiff may recover for the entire period of the employer's negligence, provided that an act continuing to the claim occurs within the filing period.   The Second Circuit has explained that the doctrine is based on the idea that certain torts continually give rise to new causes of action, which can be brought notwithstanding the expiration of the limitations period for prior causes of action.”  (Citations omitted;  internal quotations marks omitted.)  Conte v. County of Nassau, supra, United States District Court, Docket No. 06–CV–4746.   Our case law is consistent with this.   See, e.g., American Diamond Exchange v. Alpert, 101 Conn.App. 83, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

The defendants cite the case of Crown Equipment Corp. v. Toyota Material Handling U.S.A., Inc., 202 Fed.Appx., 108, (6th Cir.2006), which involved a claim of tortious interference by the defendant of an exclusive dealership contract between the plaintiff and Florida Lift. Crown Equipment Corp., (Crown), alleged that after Toyota Material Handling U.S.A., Inc., (TMHU) learned of the exclusivity provision between Crown Equipment and Florida Lift, TMHU's failure to withdraw from its relationship with Florida Lift constituted continuing interference with the Crown–Florida Lift relationship.   The claim by Crown was that TMHU's defense of Florida Lift during litigation between Crown and Florida Lift was tortious, constituting part of a plot to force Crown to continue with Florida Lift during the course of the litigation in order to switch Crown customers to the TMHU. The court held that this claim could not succeed, and the post-negotiation conduct by TMHU was not a new breach, “but rather constituted the determination of the legal consequences of that breach.”  Id., 114.   The court also noted that TMHU's funding of Florida Lift's defense was a “legitimate business strategy based on TMHU's desire to ensure financial stability ․ not a plot to force Crown to deal with its intransigent dealer.”   Id., 114 n.7. The same reasoning applies here.

The plaintiff argues that the interference occurred with the performance of the contract between it and Chung, LLC, or otherwise caused Chung, LLC not to perform under the contract.   The defendants point out, however, that the concept of intentional interference with the performance of a contract between the plaintiff and a third party has arisen only in cases where there was no breach of a contract, and in fact, no contract at all.   See, e.g., S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 489 N.Y.S.2d 478, 108 A.D.2d 351 (1985) (where the loan agreement between the plaintiff and the defendant lender provided that the lender was required to give its consent if the plaintiff sold its assets, but such consent would not be unreasonably withheld.   When the plaintiff requested the lender to consent to transfer its assets to a purchaser, the consent was withheld, first as an attempt to force the plaintiff to sell to one of the lender's clients, and later withheld for a period of time to impede a closing.   There was no breach of any contract between the plaintiff and a third party.   The court found that the breach of the contract between the defendant and the plaintiff formed the basis for a tortious interference claim with the performance of the plaintiff's contracts with a third party, based upon allegations that the consent was, with malice, intentionally withheld).

The evidence before the jury was that on October 27, 2006, the plaintiff received a letter stating, “[t]his letter will serve as notice that the Chung Family Limited Partnership, LLC is terminating its contract for sale of 311–349 New Britain Avenue, Plainville, CT, to Landmark Investment Group, LLC. My clients are now placing the property on the market for sale as of this date.”   (Termination Letter, Pl.'s Ex. 3.) Contrary to the plaintiff's argument, the jury could not properly find that the termination occurred at any other time, nor can the plaintiff avail itself of the “continuing breach theory” in this case which is based upon tortious interference with a contract.   In the first instance, conduct after the breach which unequivocally occurred on October 27, 2006, could not have induced Chung, LLC to breach the contract.   Moreover, in the continuing course of conduct doctrine, which the plaintiff argues, it only applies in cases where there is a continuing series of acts, each one of which is a discrete wrongful occurrence giving rise to its own damages.

Here, other than the letters of intent and back-up offer which the court instructed were not improper, virtually all of the alleged improper acts occurred after the breach and before the Appellate Court ruled that Landmark had an enforceable contract with Chung.   Moreover, any actions taken or not taken by the defendants could not be found as improper or wrongful because they had no duty or obligation to act or refrain from acting.

2. SUFFICIENCY OF THE EVIDENCE

The court must still determine whether there was any evidence to permit the jury to reasonably infer that the defendants interfered with the contract prior to the October 27, 2006, termination date.   In the present case, no evidence at all exists that Senese or Calco interfered with the contract between Landmark and Chung, LLC prior to the October 27, 2006 termination, and no evidence exists that the defendants were involved with or induced the breach of the Landmark/Chung, LLC contract when the termination letter was sent on October 27, 2006—the date the parties stipulated was the breach.¹¹

The only evidence which the plaintiff points to which involved conduct on behalf of Calco prior to the termination letter being sent was what Landmark characterizes as the defendants' pre-October 27, 2006, meetings with and offers to Chung.   There was no evidence presented that Senese ever met Chung prior to October 27, 2006, other than one time in which both Senese and Chung testified when Senese went to inspect the property and Chung opened the locked gate.   Calco did present back-up offers to Chung, LLC in January 2006, and again on September 21, 2006, both of which were never signed.   The parties stipulated and the court instructed the jury that “it is not wrongful for a party to merely enter into a contract with another knowing of the existence of the other's contract with a third party.   Submitting or making a back-up offer is not, in and of itself, wrongful, and is not tortious interference.   Once does not induce another to commit a breach of contract with a third person when he merely enters into an agreement with the other with knowledge that the other cannot perform both it and his contract with the third person.   Certainly, one interested in buying a piece of property has a right to approach the seller, or its agent, to let the seller know that there is a ‘back-up’ buyer ready, willing and able to purchase the property in the event that the contractual prospective buyer cannot complete its obligations under the agreement and/or does not perform ․ The existence of a back-up offer is not tortious interference.”  (Jury instructions.)

Although the plaintiff argues that the jury reasonably could infer the existence of a relationship between the defendants and Chung, LLC well prior to October 27, 2006, based upon the defendants' January 2006 and September 2006 letters of intent and “their remarkable, non-coincidental similarity with the Landmark Contract,” no reasonable jury could have found based upon the evidence that these amounted to any improper motive or act.   These ongoing communications between the defendants and Chung, LLC's principal and agents took place in order to prepare the letters of intent—which the jury was instructed were not tortious interference.

There was no evidence that Senese enticed or manipulated Chung into terminating its agreement with Landmark other than presenting the back-up offer for a lower price and on different terms and conditions.   The letters of intent and back-up offer were made as an accepted business practice, and the jury was specifically instructed as to this.   No reasonable jury could have found that at the time Chung, LLC terminated the June 2005, contract that Senese had taken any intentional or malicious steps to constitute a tortious interference with the plaintiff.

3. TOTALITY OF THE EVIDENCE

Notwithstanding Landmark's admission that the back-up offers were not improper, and the settled law discussed above that tortious interference is not a continuing tort, the plaintiff claims that the jury and court must consider all the acts by the defendants up until the date of the foreclosure sale, March 19, 2011.¹²  The plaintiff argues that Chung, LLC was obligated to perform under the June 30, 2005, contract until such time as the tax foreclosure auction by the town of Plainville made it impossible for it to do so.   Therefore, all actions taken by the defendants up to March 19, 2011, when the sale took place could serve as a basis for a finding of tortious interference with contractual relations.   Thus, the evidence presented at trial, when viewed in its totality and in the light most favorable to sustaining the verdict, was amply sufficient to warrant the jury's verdict.

As addressed previously, a tortious interference with contract claim accrues at the time the injury is sustained by the plaintiff.   The plaintiff subscribes to the idea that the breach was a “continuing one,” and therefore all of the defendants' conduct up to the foreclosure sale auction can serve as evidence of the tortious interference.   The plaintiff then argues that the operative breach for purpose of Landmark's tortious interference claim occurred upon Chung's execution of the March 2007, contracts between the defendants and Chung, LLC, and was induced by defendants' promises set forth in those contracts, not based upon the so-called ‘termination letter’ dated October 27, 2006.

The plaintiff alleged that the following add up to some scheme or the totality of these events and the terms of which provided a financial motivation for Chung, LLC to illegally terminate and to continuously maintain said termination for many years (Revised Fourth Complaint ¶ 36b):  (1) agreeing to purchase the two purchase money mortgages owed by Chung, LLC that were in default;  (2) modifying the mortgages to require interest only and not requiring the real estate taxes to remain current as long as the contract between Chung, LLC and the defendants remained in effect;  (3) loaning money without interest to Chung, LLC to reimburse the legal fees incurred by Chung, LLC to defend the Landmark lawsuit;  (4) loaning Chung, LLC money at ten percent interest to pay real estate taxes, and only advancing $7,500;  (5) buying the property at the tax foreclosure sale and preventing the plaintiff from purchasing the tax liens;  (6) refusing to subordinate the purchase money mortgages to the plaintiff's advance of sums to Chung, LLC to satisfy the tax liens—all of which the plaintiff argues collectively supports the finding that the defendants tortiously interfered with the Landmark contract.

The plaintiff cites American Diamond Exchange, Inc. v. Alpert, supra, 101 Conn.App. 83, as authority for its claim that the totality of the defendants' acts and conduct and the inferences the jury may reasonably draw therefrom can serve as the basis for its finding of tortious interference.  American Diamond was an action for tortious interference with the plaintiff's business expectancy,¹³ and involved a series of transactions wherein the defendant and her husband had diverted the plaintiff's customers for their own benefit.   The defendant argued that she could not be found to have tortiously interfered with the plaintiff's business expectancies because no one act she committed could be considered independent tortious conduct.   However, the court specifically found she had been a knowing and willing participant in the schemes and reaped profits therefrom, and also specifically found she had employed improper means to interfere with the plaintiff's business expectancy.   In fact, the conduct was a series of improper unrelated acts where the defendant violated her continuing duty to the plaintiff.

A claim of tortious interference with business expectancies is similar to the present case in that intentional tortious interference with a business relationship and with contractual relations both require the commission of a tort or wrongful act by the defendant.   In an analogous situation, the Appellate Court affirmed the Superior Court which set aside a jury verdict on claims of tortious interference and CUTPA by focusing on the concept of whether the defendant had any duty to act.   In Downes–Patterson Corp. v. First National Supermarket, Inc., 64 Conn.App. 417, 780 A.2d 967, cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed, June 24, 2002), the plaintiff owner of real property sought to lease its property to a supermarket, however an adjacent property owner held a restrictive covenant which barred the plaintiff from using its property for the operation of a supermarket.   After numerous requests to release the restrictive covenant, the supermarket canceled its lease with the plaintiff, who then brought an action against the adjacent property owner for tortious interference with the business expectancy of the supermarket lease and a violation of CUTPA based upon the failure to release the restrictive covenant.   After the trial court set aside the jury verdict for the plaintiff, the plaintiff appealed and the Appellate Court affirmed the trial court.   Focusing on the concept of duty, the Appellate Court utilized the same analysis for the CUTPA violation and the claim for tortious interference.  “Where a plaintiff alleges that a defendant's passive conduct violates CUTPA, however, common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing.”  Id., 427.

“Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort.   A claim is made out only when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself ․ Not every act of interference is ․ tortious.”  Id., 429.

In addition to finding that there was no evidence to indicate that the defendant “intentionally interfere with the business relationship of the plaintiffs while knowing of the relationship,” the court also found that the plaintiffs had provided insufficient evidence of the defendant's alleged “improper motive or improper means.”   Instead, the plaintiff showed only “that the defendant declined to release a property right that it was under no obligation to release ․ Because of the dearth of evidence ․ we conclude that the jury likewise could only speculate as to the defendant's motive and, therefore, its finding that it was an improper one was not reasonable.”   Id., 432.

The defendants' action in this case can be justified by obviously proper motives.   Calco's actions in buying the purchase money mortgages, loaning funds for attorneys fees after Chung had terminated the contract, and loaning funds to pay the real estate taxes, were acts taken to protect his potential investment.   There was no evidence of any intentional or malicious steps to constitute a tortious interference at that time.   Once the August 19, 2009, decision of the trial court was issued, Calco took no further actions in loaning attorneys fees or real estate taxes, because, as he testified, his March 2007, contract with Chung, LLC terminated upon the court's ruling in Landmark's favor in the action between Landmark and Chung, LLC.¹⁴

As to the allegations that the defendants' failure to subordinate their first and second mortgages to the plaintiff, or failure to loan more money in order to keep the real estate taxes current, or engaging in a process to attempt to purchase the tax liens held by the town of Plainville, or to engage in the open auction process leading to the purchase of the property by another entity, these were not wrongful acts and violated no duty, but were merely good business practices taken by Calco to protect its interest in the property.   Here the defendant's failure to take certain steps, i.e., subordinate the mortgage, loan more money, refrain from the tax foreclosure sale, cannot be found to be tortious interference as a matter of law.   They had no duty to act or not to act.

The court finds it would be unreasonable for the jury to infer, based upon the acts taken by the defendants, tortious interference where the conduct claimed by the plaintiff occurred long after Chung had breached the contract, and where the defendants had no duty to act.  “To prevail on a tortious interference claim, a plaintiff must prove interference that is wrongful by some measure beyond the fact of the interference itself.”  Downes–Patterson Corp. v. First National Supermarket, Inc., supra, 64 Conn.App. 431.

Unlike American Diamond, where the court specifically found that the defendant was aware of the scheme that her actions furthered to interfere with the business relationship of her employer and potential customers, in the present case, there was no evidence of any scheme or conspiracy attributable to Calco and/or Senese.   Similar to Downes–Patterson Corp. v. First National Supermarket, Inc., where the court found no duty to act and therefore, no tortious interference, in this case, absent any duty by Calco and/or Senese, no action or inaction is wrongful.

C

CLAIM OF RECKLESS INDIFFERENCE

The jury was given interrogatories to complete, and in response to the interrogatory, “do you find that Landmark has proven by a preponderance of the evidence that Calco and/or Senese acted with reckless indifference to the rights of Landmark, or committed an intentional or wanton violation of the rights of Landmark, such that Landmark should recover punitive damages from Calco on its claim of tortious interference,” the jury answered in the affirmative as to both Calco and Senese.   This finding would supply a basis for granting common-law punitive damages.   Even if the court were to conclude that there was sufficient evidence of tortious interference with contractual relations, there was insufficient evidence that either of the defendants acted with the intent to injure or in reckless disregard of the plaintiff's rights.   See, Downes–Patterson Corp. v. First Nat'l Supermarkets, Inc., supra, 64 Conn.App. 417.

“[I]n order to award punitive damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  West Haven v. Hartford Ins. Co., 221 Conn. 149, 160, 602 A.2d 988 (1992).  “Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the actions.”  (Citations omitted;  internal quotation marks omitted.)  Franc v. Bethel Holding Co., 73 Conn.App. 114, 137–38, 807 A.2d 519 (2002).

Viewing the evidence in a light most favorable to the plaintiff, the jury was legally free to conclude that Senese, acting on behalf of Calco, was trying to facilitate the purchase of the property and protect his contractual rights as he perceived them pursuant to his back-up offer while believing at that time there was no contractual relationship between Landmark and Chung, LLC. However, it was the plaintiff's obligation, in order to support a punitive damages award, affirmatively to produce evidence to prove that the defendants intentionally sought to injure Landmark or acted in reckless disregard of its rights.   This finding by the jury was made without any evidence to sustain such a finding of reckless indifference.   No evidence was put forth that tended to show that the defendants were acting maliciously, other than the fact that Landmark and Calco were competing development companies, interested in acquiring and developing the same property, and the plaintiff's assertion that there was conduct which was reckless.   There was no reason for the defendants to walk away from the property.   As the court found in the plaintiff's application for prejudgment remedy, which the plaintiff did not challenge:  “Senese's action[s] were nothing more than aggressive business practices ․ [H]e became interested in the property and contacted the real estate agent, Calabrese, someone he had never worked with.   Upon learning that there was a contract on the property, Senese submitted a backup offer to buy the property, which is a common practice in real estate and something Senese had done on many occasions before.”  Landmark Investment Group, LLC v. Calco Construction and Development Company, et al., supra, 141 Conn.App. 47.

After a full and careful consideration of the exhibits, and witnessing the testimony and demeanor of the witnesses, the court concludes that no evidence exists that would lead a fair minded trier of fact to find that the defendants acted with reckless and wanton indifference to the rights of Landmark.

D

ACTUAL LOSS

In order to recover for a tortious interference claim, it is necessary for the plaintiff to establish that it suffered an actual loss which emanates from the claimed tortious interference and not from the breach of the contract.   The court has found in this memorandum of decision that as a matter of law the plaintiff is not entitled to recover based upon a continuing breach theory.   However, even assuming that the plaintiff could prove conduct which amounts to tortious interference, the plaintiff is still required to prove it suffered an actual loss.   The defendants argue that there was no evidence to find that the plaintiff suffered a loss.   The defendants contend that the loss of the property to Landmark is not due to any loss caused by any conduct of the defendants, but by Landmark's own refusal to purchase the property when it had the opportunity to do so—at least two specific opportunities—and therefore any damages are not causally related to any conduct by the defendants.   They further argue that there is no causal connection between any conduct of the defendants and the plaintiff's claim for lost profits.

“[I]t is an essential element of the tort of unlawful interference with [contractual relations] that the plaintiff suffered actual loss.”  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 33, 761 A.2d 1268 (2000).  “In [the] context of [a] tortious interference claim, [a] plaintiff must show more than that he was about to enter into [a] contract and must, instead, show that he would have done so ․ A damage theory may be based on reasonable assumptions so long as the assumptions are reasonable in light of the record evidence.”  Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 70, 717 A.2d 724 (1998).

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed ․ It has traditionally been held that a party may recover ‘general’ contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.   This court has consistently applied the general damage formula of Hadley v. Baxendale, [9 Ex. 341, 354, 156 Eng. Rep. 145 (1854) ] to the recovery of lost profits for breach of contract, and it is our rule that [u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach.”  West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 319–20, 514 A.2d 734 (1986).

“It is axiomatic that the burden of proving damages is on the party claiming them ․ When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty ․ Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.   In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed.

“Section 774A(1) of 4 Restatement (Second) of Torts provides:  One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for (a) the pecuniary loss of the benefits of the contract or the prospective relation;  (b) consequential losses for which the interference is a legal cause;  and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.”  (Citations omitted;  internal quotation marks omitted.)   Reyes v. Chetta, 143 Conn.App. 758, 767, 71 A.3d 1255 (2013) (where the court awarded damages for tortious interference claim based upon a causal connection between the tortious conduct and the losses sustained by the plaintiff).

The court instructed the jury that if it found tortious interference, they must then decide if Landmark had proven that it suffered an actual loss as a result of that interference.   It further instructed the jury as follows:

“Here, Landmark claims that the defendants' tortious interference caused Landmark to lose the profits it would have made from its development of the property.   The mere fact that Landmark had a contractual right to buy the property is not enough to entitle it to recover lost profits from the development of the property.   In order to recover such lost profits, Landmark must prove that but for the tortious interference, there was a reasonable probability that Landmark (1) would have purchased the property at 311–349 New Britain Avenue, Plainville from Chung, LLC;  (2) would have been able to develop it;  and (3) that because it was prevented from doing so by the defendants, Landmark lost profits.   The mere possibility of purchasing the property or making a profit is not enough.”

The defendants argue that the plaintiff would not have purchased the property because when given the opportunity by reason of the court's order granting them specific performance, they failed to do so, and its failure to purchase the property at that time and at two later dates was not prevented by any conduct of the defendants.   Further, its claim for lost profits was not based upon proven facts.   The court will first address the last claim with respect to the plaintiff's claimed loss.

1. REPORT OF WILLIAM KANE

Landmark has alleged that as a result of the defendants' tortious interference, it has been damaged by its loss of prospective profits from purchasing and developing the property to its highest and best use.   Such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating that amount with reasonable certainty.

The court found in a previous action between Landmark and Chung, LLC that the assumptions and conclusions made by the appraiser, William Kane, were based on sound methodology and recognized real estate appraisal practices as well as on factual data.¹⁵

The plaintiff offered the expert testimony of Kane to opine as to the alleged loss of profit incurred by Landmark by not being able to purchase the property in dispute.   Kane performed his assessment as of October 27, 2006, a date supplied by the plaintiff as the date of the failure to perform the contract by Chung, LLC—the date of the breach of the contract by Chung, LLC with Landmark.   His report was not prepared for this case, but in fact was prepared for the Chung I action.   See, Chung I, Docket No. CV 07–5003201, August 19, 2009).   While the report was introduced in that case, on appeal the issue of the report and/or its admissibility was never addressed because “Landmark abandoned its claim for any damages relating to the delay or lost profits, and indicated [at trial] that it sought damages under CUTPA only for the attorneys fees incurred ․” Chung I, supra, 125 Conn.App. 686, n.10.

The court permitted Kane to testify in this trial, and to offer his expert opinion.   The report was based on the assumption that but for the contract termination the plaintiff would have purchased the premises almost immediately—by October 27, 2006.   While the plaintiff asserts that conduct by the defendants up until the foreclosure sale should be considered in determining whether the defendants' conduct resulted in tortious interference with the contractual relations, in order to create a valuation date for the assessment, Kane was instructed by Landmark to use October 27, 2006—the date of the termination letter.   The defendants contend that this date selected by Landmark to calculate lost profits does not relate to any relevant date in this case.

Kane admitted in his testimony that implicit in the use of the valuation date is that the plaintiff would buy the property immediately, and that he used an assumption that Landmark would close on the property immediately.   He then calculated, based upon data provided to him by Landmark, that it would take eighteen months to completion, on the assumption that as of the date of valuation, all approvals and tenants would be secured, and therefore he chose May 1, 2008, as the date most probable for prospective stabilized occupancy.   However, when the analysis was performed, Kane also was aware that in fact no applications had been filed with the various town and state commissions, no inland-wetland approvals were filed, no state traffic commission studies were completed, no application was pending for any financial approval, there were no municipal approvals, and most importantly, not only were there no prospective tenants who had entered into any lease agreements, but no letters of intent had been signed, nor indeed had any substantial negotiations taken place.   Thus, the basic facts upon which the appraisal is predicated are not only not proven but were disproven.

The present case is akin to Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 30 A.3d 703 (2011).   Contrary to what plaintiff argues, the contract at issue was for the purchase of undeveloped land and would not have resulted in the construction of a multi-million dollar shopping complex from which the plaintiff was deprived profits.   The specific performance was for the acquisition of undeveloped land which required extensive remediation.   Here, in line with Ganim, the question of lost profits is premised on so many assumptions and contingencies that its consideration by the jury required surmise and guesswork.  Id., 117–18.   In Ganim, the Appellate Court affirmed the trial court's decision to exclude the appraisal because there was an insufficient causal relationship between the termination of the development agreement and the developer's claimed losses, so that lost profits were not recoverable at all, and that damages for lost profits are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty.

In ruling on the motions in limine, the court found that “to preclude evidence of lost profits implicate[s] the issue of causation, an essential element that must be proven by the plaintiff under all causes of action asserted in the complaint.   The [trial] court, quoting Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999), set forth the law of causation in this jurisdiction and noted the rule that causal connection must be based upon more than conjecture and surmise.   The [trial] court found that the plaintiff's opposition to the defendants' motions in limine emphasized the first component of legal cause, i.e., cause in fact, and deemphasized the second component of legal cause, i.e., proximate cause.   We agree with the reasoning of the court.”  Id., 117–18.   Here, too, as a matter of law, the court determines that after hearing the cross examination of Kane at trial, the report was not based upon factual predicates.   Not one aspect of the report and valuation was based on an actual fact about the premises or its financial history.   Therefore, the report is not based upon facts, but upon conjecture and surmise, and therefore is unreliable.¹⁶

“Although we recognize that damages for lost profits may be difficult to prove with exactitude ․ such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty.”  Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 69. (vacating trial court's award of $15.9 million in lost profits for prospective period of twelve years because not proved to reasonable certainty where testimony from expert too speculative to support award.)  “In order to remove the assessment of damages from the realm of speculation, it is necessary to tie the award of damages to objective verifiable facts that bear a logical relationship to projected future profitability.”  Id., 69.

The evidence submitted was for lost anticipated profits for a development that was contemplated by Landmark in several variations.   In order for the jury to find the lost profits, the evidence must be reasonably certain as to the occurrence and extent of these lost profits.   The expert testimony alone might be a sufficient basis for an award of lost profits when the expert opinion is “supported by tangible evidence with a substantial and sufficient factual basis rather than by mere speculation and hypothetical situations.”  Parlour Enterprises, Inc. v. The Kirin Group, Inc. et al., 152 Cal.App.4th 281, 288, 61 Cal.Rptr.3d 243 (2007).

No reasonable jury could have found based upon the evidence that there was a reasonable probability that Landmark would have purchased the property or even that it would have been able to develop it according to its plans.   Even when Landmark had the opportunity to purchase the property once the Appellate Court ordered specific performance, it chose not to do so.   There was no credible evidence to indicate, and no reasonable jury could have found, that Landmark could have developed the property as it indicated in the exhibits, that it would have received the requisite approvals from the various town boards and commissions,¹⁷ commenced any engineering study, commission a development plan, procured a mortgage of $10,250,000, or fulfilled any of the other conditions set forth in the Agreement which it argued it wanted the benefit of and that is why it did not purchase the property when it had several opportunities to do so.   There was absolutely no evidence that the plaintiff had commenced any of the work necessary to satisfy these contingencies which it was obligated to do under the Agreement.   He commenced no engineering study, never sought town board or commission approvals, did not commission a development plan, nor did he seek mortgage financing.   In fact, the only evidence that was submitted was Landmark's efforts to attempt to market the property from 2005–2007, without any success or even any interest.

The lost profits determination was not based on objective facts, figures, and data from which lost profits could be reasonably ascertained.   Furthermore, no reasonable jury could have found that the loss was a natural, probable and foreseeable consequence, or that the lost economic development would have been realized but for the defendants' wrongful act.

2. SPECIFIC PERFORMANCE

The defendants argue that any loss realized by Landmark was due to its own refusal to purchase the property when it was awarded specific performance by the court.

The court stated in its charge to the jury that they were to accept as proven that Landmark was awarded specific performance under the purchase and sales agreement in its lawsuit brought against Chung, LLC. The court further instructed the jury as to the meaning of the term “specific performance” as follows:

“Under our law, specific performance is an equitable remedy.   Specific performance means performance specifically as agreed.   The purpose of the remedy is to give the one who asks for it the benefit of the contract by compelling the other party to do what he or she has agreed to do—that is, to perform the contract on the precise terms agreed to by the parties.   A decree or order for specific performance, therefore, is nothing more or less than a means of compelling a party to do precisely what he agreed to do, that is, to perform the contract as agreed.

“It has been agreed that in a prior action, the trial court awarded Landmark the remedy of ‘specific performance’ as to the purchase and sale agreement with Chung, LLC. In affirming the trial court's decision in that case, the Appellate Court held that “Landmark should take advantage of the contract terms to either terminate the agreement or to close immediately on the property.”  (Jury Instructions.)

Landmark's position throughout has been that it was entitled to pursue all the contingencies of the Agreement rather than either terminate the agreement or to close immediately on the property.   The evidence clearly indicated that Landmark had the opportunity to purchase the property at several crucial times prior to the property being sold at the foreclosure auction.   As the plaintiff's principal, Glenn Russo, testified, Landmark was ready, willing and able to perform its obligations under the ․ [c]ontract at all relevant times.   Moreover, both the plaintiff's expert, William E. Kane and Russo testified to the feasibility of funding for the development of the property.   The plaintiff argues that the evidence showed, through the testimony and report of Kane, that Landmark would have purchased the property by May 2008, had the defendants not wrongfully interfered with Chung, LLC's performance of the contract.   Russo testified that he wanted the benefit of all contingencies in the agreement before he would purchase the property.   However, the contingency which was the most crucial—and which spawned this litigation—was the environmental remediation of the property.   The court notes, however, that the Agreement provided for the remediation to occur after the closing and the other contingencies were those the plaintiff itself was obligated to satisfy;  i.e., financing and approvals, none of which was done or even attempted.

The evidence contradicts Landmark's assertion that it was ready, willing and able to purchase the property.   Landmark was given several opportunities to perform under the contract, but did not do so.   Moreover, there was no evidence to indicate Landmark was pursuing its contingencies that it believed it had the right to be fulfilled prior to the purchase of the property.   The testimony of Attorney Hamzy, who represented Chung at several meetings in March 2011, prior to the foreclosure sale, and confirmed by letters from Hamzy to Attorney Tansley (who represented Landmark at the time) indicated that Landmark could have purchased the property for $1.8 million “as is” or for $2.25 million and hold all the proceeds, in excess of funds needed to release the liens in escrow pending the environmental remediation—exactly what was provided for in the Purchase and Sales Agreement.

The plaintiff points to no conduct by the defendants that would have prevented the sale from Chung, LLC to Landmark.   Instead, Russo testified that he did not close because he wanted to take advantage of his contingencies.   Landmark cannot establish a loss because it cannot establish that it made any reasonable effort to satisfy any of the contingencies to go forward with the project.   Landmark did nothing to move forward with the development.   It did not undertake any of the risks and efforts of the development.   It cannot now sit back and claim all the damages as if it had.   The damages about which Kane hypothesized were in fact, the result of the plaintiff's failure to act in a timely manner.

Landmark failed to demonstrate that the intentional interference by Calco caused it to sustain an actual loss.¹⁸  No reasonable jury could have found sufficient evidence that but for the tortious interference Landmark would have purchased the property and developed it, and therefore, the defendant's alleged conduct proximately caused the plaintiff's losses.

It was impossible for the jury to find without resort to speculation or conjecture, that the defendants' conduct as opposed to the plaintiff's failure to act on its specific performance remedy caused the plaintiff's losses.

3. DUTY TO MITIGATE 19

It cannot be denied that Landmark had several opportunities to purchase the property prior to the foreclosure sale as well as at the public foreclosure sale itself.   Kane estimated that Landmark's loss was $4.5 million in profits, had Landmark purchased the property on or about October 27, 2006.   The plaintiff argued that it could refuse to close on the property to get the benefit of the contingencies in the contract is inconsistent with his expert's opinion—as well as his own testimony—that the contingencies and approvals would be easily attainable.   By not attempting to mitigate damages, Landmark is unable to demonstrate an actual or ascertainable loss—required for both tortious interference and CUTPA, because it fails to prove its loss (if in fact it did prove the loss) was attributable to the conduct of the defendants.

The court asked the parties to address the issue of whether or not Landmark had a duty to mitigate its damages, and to indicate any evidence which would show that Landmark took any steps to comply with the order of specific performance as ordered by the court.   Specifically, the court questioned whether Landmark did anything to enforce its contractual obligations under the contract in order to mitigate its damages.   The importance of this issue is that it is incumbent for the plaintiff to prove that it suffered an actual loss in order to recover for tortious interference or an ascertainable loss for a CUTPA violation.

Courts have often said in the contracts and torts contexts that the party receiving a damage award has a duty to make reasonable efforts to mitigate damages.  Preston v. Keith, 217 Conn. 12, 16, n.5 584 A.2d 439 (1991);  Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989);  West Haven Sound Development Corp. v. West Haven, supra, 201 Conn. 332.  “What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier.”  (Internal quotation marks omitted.)  Vespoli v. Pagliarulo, supra, 212 Conn. 3;  accord Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980).   Furthermore, courts have concluded that the breaching party bears the burden of proving that the nonbreaching party has failed to mitigate damages.  Preston v. Keith, supra, 217 Conn. 21–22;  see Newington v. General Sanitation Service Co., 196 Conn. 81, 86, 491 A.2d 363 (1985).

In Nardi v. Grundberg 628 Hebron, LLC, Superior Court, judicial district of Hartford, Docket No. CV 08 4038808 (April 7, 2011), the court reduced the amount of damages claimed on a tortious interference claim because the plaintiff failed in its duty to mitigate damages.   Here, by failing to purchase the property either after the Appellate Court decision or on the other occasions in which Landmark was given the opportunity to do so, it failed to mitigate its damages.

C

CUTPA

The second count incorporated all the allegations of the first count claiming tortious interference with contractual relations, and alleged that the conduct of Senese, on behalf of himself and Calco, involved unfair or deceptive acts or practices in the conduct of their business in violation of CUTPA.   Specifically, Landmark alleges that the actions of Senese regarding the overall tortious interference with the Landmark contract were “immoral, unfair, and unscrupulous.”   Fourth Amended Complaint, Second Count, ¶ 41.   Landmark further alleges that as a result of the defendants' conduct, Landmark has suffered an ascertainable loss due to (a) Chung terminating “its contract with Landmark damaging it for the value of the property as it existed in 2006”;  (2) forcing Landmark to engage in “massive litigation”;  and (3) causing “Landmark to lose the opportunity to develop the property resulting in loss profits.”  Id., ¶ 43.

The jury found in favor of Landmark and against Senese and Calco on Landmark's CUTPA claim.   The jury was given interrogatories on this count.  “Do you find that Landmark has proven by a preponderance of the evidence that John Senese and Calco engaged in unfair competition or committed unfair or deceptive acts in violation of CUTPA?”   The jury answered this question in the affirmative.   The jury was also asked, “Did Landmark prove by a preponderance of the evidence that Landmark suffered an ascertainable loss as a result of the conduct by John Senese and Calco?”   The jury answered this question in the affirmative as well.

The defendants argue that the jury's verdict against it on the CUTPA count should be set aside and that judgment should enter in its favor.   According to the defendants, there was no evidence submitted of any act or practice which rises to the level necessary to support a finding of immoral, unethical, or unscrupulous conduct.   The defendants further argue that there was no evidence of an ascertainable loss, and any loss was caused by the actions or inactions of Landmark itself, not by the defendants.

As to the adequacy of the plaintiff's allegations, it is noted that “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.”  (Citation omitted;  internal quotation marks omitted.)  Chung I, supra, 125 Conn.App. 705–06.  “There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy.”  (Internal quotation marks omitted.)  Szekeres v. Szekeres, 126 Conn.App. 829, 843, 16 A.3d 713, cert. denied, 300 Conn. 940, 17 A.3d 475 (2011).

On the other hand, when breach of contract allegations are supplemented with allegations that show that the defendant engaged in a pattern of bad faith conduct, such allegations may support a determination that the defendant's conduct violated CUTPA.  Chung I, supra, 125 Conn.App. 708.

“Thus, the essential difference between a tort claim for interference with business expectancies and a claim under CUTPA is the standard by which the alleged acts are measured.   While liability in tort is imposed only if the defendant maliciously or deliberately interfered with a competitor's business expectancies, CUTPA liability is premised on a finding that the defendant engaged in unfair competition and unfair or deceptive trade practices.   The Connecticut General Assembly deliberately chose not to define the scope of unfair or deceptive acts proscribed by CUTPA so that courts might develop a body of law responsive to the marketplace practices that actually generate such complaints.   For that reason CUTPA commands that in construing what conduct the act prohibits, courts should be guided by interpretations of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), made by federal courts and the Federal Trade Commission.  General Statutes 42–110b(b).  Because CUTPA is a self-avowed “remedial” measure, General Statutes 42–110b(d), it is construed liberally in an effort to effectuate its public policy goals.   Predictably, CUTPA has come to embrace a much broader range of business conduct than does the common law tort action.

“In determining whether a practice violates CUTPA, the court should employ these criteria:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—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 businessmen) ].

“A trial court must guard against considering business tort claims and CUTPA claims in the same light.   Conduct that might be actionable under CUTPA may not rise to a level sufficient to invoke tort liability.   The reverse of that proposition, however, is seldom true.   Provided a plaintiff shows that his or her claim is cloaked with the necessary public interest, it is difficult to conceive of a situation where tortious interference would be found but a CUTPA violation would not.   Because the tort standard is more stringent, a plaintiff who alleges both claims is harmed only if the trial court applies the tort standard to the CUTPA claim.   A trial court would err in applying the less demanding CUTPA standard to a tort claim, but it is only the defendant, not the plaintiff, who would be harmed thereby.”  (Citations omitted;  internal quotation marks omitted.)  Sportsmen's Boating Corp. v. Henley, 192 Conn. 747, 755–57, 474 A.2d 780 (1984).

The court is aware that CUTPA's standard for liability is more flexible than the more rigid tort standard.   However, even with applying this more flexible standard, the court finds that no reasonable jury could have found that the plaintiff met its burden of proof in establishing that the defendant engaged in unfair or deceptive acts or competition without resorting to conjecture and speculation.²⁰

1. Allegations for CUTPA violation

The plaintiff alleges that the defendants' overall tortious interference was immoral, unfair, and unscrupulous.   Each and every one of these assertions is not supported by any evidence.

1. Calabrese asked Chung's lawyer in August 2005 to “review the contract to determine if [Chung] has any way out of it if he so chooses.” ²¹  (Plaintiff's Exh. 52.)   There was no evidence that the defendants had any contact with either Calabrese and/or Chung prior to August 2005, or in any way influenced the letter.

2. Calabrese advised the defendants of the terms and conditions of an offer from the defendants that would be acceptable to Chung.   There was no direct evidence that Calabrese in fact did advise Senese of the exact terms and conditions, but it would be a reasonable inference that Senese knew of acceptable terms and conditions when he submitted letters of intent and/or back-up offers.   In any event, this conduct is neither illegal, unethical nor unscrupulous.   Calabrese was acting as the broker on the property, and the defendants submitted a back-up offer, which the court instructed the jury, with agreement by the parties, that “existence of a back-up offer is not tortious interference.” ²²  There is no conspiracy count that Calabrese was somehow colluding with Calco and/or Senese, and Calabrese was a broker under a duty to find a purchaser for the property.

3. Execution of contract on March 6, 2007 subject to resolution of lawsuit.   This contract contained an addendum making it specifically contingent on the successful resolution of the action which was then pending between Landmark and Chung, LLC. Again, this back-up offer provided no evidence of any “molestation” of the then breached contract between Landmark and Chung, LLC. (Plaintiff's Exh. 6, Addendum.)   Furthermore, execution of a contract containing such a contingency is neither illegal, unethical, nor unscrupulous.

4. The defendants purchased the first and second mortgages on the property for which Chung was in default and foreclosure was threatened.   The March 6, 2007, agreement between Chung, LLC and Senese stated that Chung, LLC would not be in further default if he did not pay mortgages or taxes only while the contract to sell to the defendants remained in effect.   If Calco was able to close on the property, these mortgages would merge with its interest so there would be no necessity to foreclose.

5. Agreed to loan funds for services of the defendants' attorneys to represent Chung, LLC in Landmark's specific performance action, with no payments due while contract to sell to Calco remained in effect.   The agreement to loan funds for legal services happened after the breach of the contract, and as a matter of law, was not an inducement to breach the contract.²³  There was nothing improper or illegal in the payment of these attorneys fees.

6. Calco agreed to loan funds to pay real estate taxes, without obligation for repayment while the contract to sell to Calco remained in effect, and once the decision in the lawsuit between Landmark and Chung, LLC was issued finding Chung, LLC had breached the contract, Calco did not loan any further funds to pay the real estate taxes.   The defendants were under no duty to continue to loan funds to pay the real estate taxes.   Furthermore, this occurred after the breach.

7. In order to secure sums paid by the defendants on Chung's behalf, Chung, LLC assigned a mortgage on other property which was Chung's sole source of income.   There is nothing illegal about loaning money and obtaining adequate security.

8. Due to the unpaid taxes on the property, and Calco not loaning any other money to pay the taxes, the taxes went into default, which caused the town of Plainville to foreclose the liens.   The defendants owed no duty to make any further loans for taxes.

9. The defendants declined to subordinate the Brown sisters' mortgages to an advance by the plaintiff to Chung, LLC for sums in order to pay the tax liens.   Calco had no duty to subordinate its first and second mortgages to Landmark.   At that point, there was not even a valid contract between Calco and Chung, LLC for the property.   The defendants were under no duty or obligation to do what it refrained from doing.   See, Downes–Patterson Corp. v. First Nat'l Supermarkets, Inc., supra, 64 Conn.App. 427.

10. The defendants had an “economic stranglehold” on Chung.   Calco had certain contractual rights and was legally entitled to enforce those rights or not enforce those rights.

11. A subsidiary company of the defendants was the successful bidder at the auction and took title to the property.   This was a public auction.   There was no improper or illegal conduct by the defendants.   The defendants had the legal right to pursue the property, and the purchase and bidding at a public auction cannot as a matter of law be considered illegal, unethical, or unscrupulous.

“There can be no denial that inferences may properly be drawn from circumstantial evidence.   A plaintiff, however, must remove the causal relationship from the area of speculation and establish facts which afford a logical basis for the inferences claimed.   The test of the validity of the jury's determinations depends upon whether the evidence, fairly and impartially considered, would be likely to induce in the minds of [six persons] of ordinary intelligence attentively considering it and using common sense logical a reasonable belief that it is more probable than otherwise that the fact in issue is true.   Upon the evidence in the present case, the jury could not reasonably have found that there was a causal relationship between the fault of the defendant and the damage sustained by the plaintiff ․” Robinson v. Southern New England Tel. Co., 140 Conn. 414, 419–20, 101 A.2d 491 (1953) (affirming the directing of a judgment notwithstanding the verdict).

In Downes–Patterson Corp. v. First Nat'l Supermarkets, Inc., supra, 64 Conn.App. 417, the Appellate Court focused on the concept of duty, pointing out that duty is usually not a prerequisite to a finding of a CUTPA violation.   “Where a plaintiff alleges that a defendant's passive conduct violates CUTPA, however, common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing.”   Id., 427.  “Although the plaintiff ․ is correct in its assertion that the test for tortious interference contains no explicit duty requirement, ․ the discussion ․ regarding the role of the concept of duty in the analysis of the CUTPA claim is equally applicable here ․” Id., 430.

The same facts that Landmark relied upon to prove its tortious interference claim as the same facts it sets forth to establish a violation of CUTPA.   However, no reasonable jury, eliminating conjecture and speculation, could have found that any act or practice of either or both of the defendants meets the standard necessary for a finding of immoral, unethical, or unscrupulous conduct.

2. Ascertainable Loss

As explained in Part IIIC of this decision, the evidence presented at trial was insufficient to establish that the defendants did anything improper.   In addition, the plaintiff's failure to prove a causal relationship between the actions of the defendants and its alleged losses is fatal to the CUTPA allegation in that a necessary element of a CUTPA claim is proof of an ascertainable loss.   See Part IIID.

IV

CLOSING ARGUMENT BY PLAINTIFF'S COUNSEL

The defendants claim that the court should set aside the verdict because the verdict was inspired by inappropriate comments by counsel for the plaintiff in his closing arguments which enflamed the jury.   These comments, including inappropriate references to the conduct of the defendants' counsel in representing Chung, LLC in the Landmark specific performance trial as well as the defendants in this action.   Based on that legal representation, the plaintiff's counsel implied that such representation was evidence of complete control and domination of Chung, LLC. The defendants further claim that counsel demonstrated by critical, sarcastic remarks, hand gestures and facial expressions an intention to defame and ridicule counsel for the defendants.

The plaintiff responds that no objection was noted during the trial and no curative instruction was requested after his argument.   Moreover, it is entirely proper for counsel to argue his client's case forcefully so long as it is fair and based on facts in evidence and reasonable inferences.   See, State v. Rowe, 279 Conn. 139, 158, 900 A.2d 1276 (2006).

The court has reviewed the transcript of the closing argument by the plaintiff's attorney.   While the court agrees that the argument was somewhat inflammatory, and at times not based on facts in evidence, it does not rise to the level which would cause the court to set aside the verdict.

“[I]t is critical that following any objection to improper argument, counsel not only state the grounds upon which the objection is based, but also request further remedial action, such as a request of the trial judge to provide remedial instructions to the jury or to strike such from the record ․ Regardless of whether or not any action of a curative nature is taken by either the trial court or counsel, it has been recognized that where misconduct is so prejudicial that the jury must have been adversely affected, reversal of the judgment below will follow ․ Thus, where opposing counsel's argument is so inflammatory and prejudicial that no instruction given by the trial judge, or no other form of corrective action could cure the harm, counsel is not bound to object.”   Stein, Closing Arguments § 1:110 (2011–2012 ed.).

Good lawyering by the plaintiff's counsel cannot change the facts, and although counsel was able to present a factual scenario that the defendants took advantage of both the plaintiff and Chung, a proper application of the law to the facts of this case do not support claims for tortious interference and violation of CUTPA.

V

LENGTH OF JURY DELIBERATIONS

The defendants' final claim for the court to set aside the verdict relates to the length of the jury deliberations.   They argue that the jury rendered an unfair and prejudicial verdict, which was evidenced by a desire to quickly dispatch the case without proper deliberation.   Further, due to the enflamed prejudice exhibited by the plaintiff's counsel during closing argument, the jury returned a verdict for the plaintiff and against the defendants in less than two hours, failing to follow the court's instructions to properly consider the evidence produced from multiple witnesses during the six-day trial on a complicated commercial real estate case dealing with events which took place over a six-year period, with fifty-two (52) exhibits—some being twenty (20) to thirty (30) pages in length, a thirty-one (31) page jury charge, four pages of jury interrogatories, and a multiple page jury verdict form.

The plaintiff responds that the evidence in this case does not include an excessive number of exhibits and that, in fact, the jury reviewed, considered and deliberated over the evidence due to its award of $4 million in compensatory damages to the [p]laintiff—an amount less than [p]laintiff sought and to which its expert testified—as well as the fact of the interrogatories submitted to the jury which particularly identified to it the factual issues which it need consider and address.

While federal courts may consider the length of deliberations under rule 59 of the Federal Rules of Civil Procedure, it is noted that in Connecticut, “we cannot infer misconduct from the duration of the jury's deliberations.   The length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict.”  (Internal quotation marks omitted.)  Judson v. Brown, 98 Conn.App. 381, 383, 908 A.2d 1142 (2006).²⁴

Since the court has determined that the jury could not have consistent with the law reasonably reached its verdict, it is unnecessary to tie this to the temporal argument.

VI

CONCLUSION

For the foregoing reasons, the defendants' motion for judgment notwithstanding the verdict is granted.   The jury's verdict is both against the law and the evidence.   Additionally, the court will not order a new trial because it is not apparent that the necessary evidence would be available upon retrial.   Consequently, judgment is entered in the defendants' favor.²⁵

Swienton, J.

FOOTNOTES

FN1. Landmark Investment Group, LLC, and Chung Family Realty (Chung, LLC) have been embroiled in litigation regarding the purchase and sale of property since December 2006, when Landmark filed a complaint in six counts alleging breach of contract, breach of the implied covenant of good faith and fair dealing, violation of CUTPA, and interference with contractual relations.  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, Superior Court, judicial district of New Britain, Docket No. CV 07–5003201.   A trial in that matter was conducted in 2009, and the court found that the agreement regarding the purchase and sale was valid and enforceable, had been unlawfully terminated, and ordered that it be specifically performed according to its terms.   In addition to ordering specific performance, the court found Chung, LLC had violated CUTPA, and awarded Landmark attorneys fees and costs in the amount of $171,813.54.   (Dunnell, J., August 19, 2009.)   Chung, LLC filed an appeal from the decision and the granting of specific performance, and on December 28, 2010, the Appellate Court affirmed the trial court's decision.   For a full description of those proceedings, see Landmark Investment Group, LLC v. Chung Family Realty, LLC, 125 Conn.App. 678, 10 A.3rd 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011)..  FN1. Landmark Investment Group, LLC, and Chung Family Realty (Chung, LLC) have been embroiled in litigation regarding the purchase and sale of property since December 2006, when Landmark filed a complaint in six counts alleging breach of contract, breach of the implied covenant of good faith and fair dealing, violation of CUTPA, and interference with contractual relations.  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, Superior Court, judicial district of New Britain, Docket No. CV 07–5003201.   A trial in that matter was conducted in 2009, and the court found that the agreement regarding the purchase and sale was valid and enforceable, had been unlawfully terminated, and ordered that it be specifically performed according to its terms.   In addition to ordering specific performance, the court found Chung, LLC had violated CUTPA, and awarded Landmark attorneys fees and costs in the amount of $171,813.54.   (Dunnell, J., August 19, 2009.)   Chung, LLC filed an appeal from the decision and the granting of specific performance, and on December 28, 2010, the Appellate Court affirmed the trial court's decision.   For a full description of those proceedings, see Landmark Investment Group, LLC v. Chung Family Realty, LLC, 125 Conn.App. 678, 10 A.3rd 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).

FN2. The jury also found that both Calco and Senese acted with reckless indifference to the rights of Landmark which allowed for a recovery of punitive damages under the claim of tortious interference..  FN2. The jury also found that both Calco and Senese acted with reckless indifference to the rights of Landmark which allowed for a recovery of punitive damages under the claim of tortious interference.

FN3. Also pending are the plaintiff's motion for an award of punitive damages under CUTPA (# 275), motion for order of postjudgment interest (# 277), and motion for an award of common-law punitive damages and attorneys fees under CUTPA (# 279).   The court heard argument on those motions together with the motion for judgment notwithstanding the verdict.   The plaintiff also filed an application for prejudgment remedy (# 273) and motion for disclosure of assets (# 273.25), but the court declined to hear those matters until resolution of the present motion..  FN3. Also pending are the plaintiff's motion for an award of punitive damages under CUTPA (# 275), motion for order of postjudgment interest (# 277), and motion for an award of common-law punitive damages and attorneys fees under CUTPA (# 279).   The court heard argument on those motions together with the motion for judgment notwithstanding the verdict.   The plaintiff also filed an application for prejudgment remedy (# 273) and motion for disclosure of assets (# 273.25), but the court declined to hear those matters until resolution of the present motion.

FN4. The plaintiff did not challenge the court's factual findings in the appeal, but only the court's legal conclusion that the plaintiff had failed to establish probable cause for a tortious interference claim and a violation of CUTPA..  FN4. The plaintiff did not challenge the court's factual findings in the appeal, but only the court's legal conclusion that the plaintiff had failed to establish probable cause for a tortious interference claim and a violation of CUTPA.

FN5. At trial in this case, there was testimony that Senese may have been given a copy of the June 2005, contract between Landmark and Chung, LLC..  FN5. At trial in this case, there was testimony that Senese may have been given a copy of the June 2005, contract between Landmark and Chung, LLC.

FN6. Calco did not loan Chung, LLC funds in order to pay legal fees for the appeal which followed the Superior Court decision of August 19, 2009..  FN6. Calco did not loan Chung, LLC funds in order to pay legal fees for the appeal which followed the Superior Court decision of August 19, 2009.

FN7. Comment on clause e—”The social interest in this enterprise may frequently require the sacrifice of the claims of the individuals to freedom from interference with their pursuit of gain.   Thus it is thought that the social interest in competition would be unduly prejudiced if one were to be prohibited from in any manner persuading a competitor's prospective customers not to deal with him.   On the other hand, both social and private interests concur in the determination that persuasion only by suitable means is permissible, that predatory means like violence and fraud are neither necessary nor desirable incidents of competition.”.  FN7. Comment on clause e—”The social interest in this enterprise may frequently require the sacrifice of the claims of the individuals to freedom from interference with their pursuit of gain.   Thus it is thought that the social interest in competition would be unduly prejudiced if one were to be prohibited from in any manner persuading a competitor's prospective customers not to deal with him.   On the other hand, both social and private interests concur in the determination that persuasion only by suitable means is permissible, that predatory means like violence and fraud are neither necessary nor desirable incidents of competition.”

FN8. The court included these factors in its jury instructions..  FN8. The court included these factors in its jury instructions.

FN9. As the court points out several times in this memorandum, the parties stipulated that the breach of the contract occurred on October 27, 2006, the date of the termination letter The plaintiff argued at trial, however, that it was all the conduct by the defendants up until the point the property was sold at the foreclosure auction that constituted the tortious interference.   In its memorandum in opposition to the judgment notwithstanding the verdict, Landmark argues that the breach occurred in March 2007, with the contract between Calco and Chung LLC..  FN9. As the court points out several times in this memorandum, the parties stipulated that the breach of the contract occurred on October 27, 2006, the date of the termination letter The plaintiff argued at trial, however, that it was all the conduct by the defendants up until the point the property was sold at the foreclosure auction that constituted the tortious interference.   In its memorandum in opposition to the judgment notwithstanding the verdict, Landmark argues that the breach occurred in March 2007, with the contract between Calco and Chung LLC.

FN10. The issue of whether there was any evidence to indicate tortious conduct by the defendants prior to the breach of the contract is discussed in Part III, B, 2 infra..  FN10. The issue of whether there was any evidence to indicate tortious conduct by the defendants prior to the breach of the contract is discussed in Part III, B, 2 infra.

FN11. The plaintiff in its supplemental brief indicated that the court did not identify the date of Chung's breach in the jury instructions.   Plaintiff's supplemental brief, n.3. The court did, in fact, in its charge on Stipulations and Undisputed Fact indicate that “[o]n October 27, 2006, Chung, LLC, breached the purchase and sale agreement with Landmark ․” After the charge was given, plaintiff's counsel questioned the court as to whether the date was added after the charging conference and argument, and the court indicated that it had.   In reviewing the transcript, it does not appear that the plaintiff took an exception to that portion of the charge..  FN11. The plaintiff in its supplemental brief indicated that the court did not identify the date of Chung's breach in the jury instructions.   Plaintiff's supplemental brief, n.3. The court did, in fact, in its charge on Stipulations and Undisputed Fact indicate that “[o]n October 27, 2006, Chung, LLC, breached the purchase and sale agreement with Landmark ․” After the charge was given, plaintiff's counsel questioned the court as to whether the date was added after the charging conference and argument, and the court indicated that it had.   In reviewing the transcript, it does not appear that the plaintiff took an exception to that portion of the charge.

FN12. Actually, the plaintiff argues that conduct taken by the defendants up to several different dates establish the tortious interference:  October 27, 2006—the date of the breach to which the parties stipulated, March 6, 2007—the date of the back-up contract entered into between Calco and Chung, August 9, 2009—the date of the memorandum of decision by the Superior Court, December 28, 2010—the date of the Appellate Court decision, and March 19, 2011—the date of the foreclosure sale..  FN12. Actually, the plaintiff argues that conduct taken by the defendants up to several different dates establish the tortious interference:  October 27, 2006—the date of the breach to which the parties stipulated, March 6, 2007—the date of the back-up contract entered into between Calco and Chung, August 9, 2009—the date of the memorandum of decision by the Superior Court, December 28, 2010—the date of the Appellate Court decision, and March 19, 2011—the date of the foreclosure sale.

FN13. “A successful action for tortious interference with business expectancies requires the satisfaction of three elements:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  American Diamond Exchange, Inc. v. Alpert, supra, 101 Conn.App. 90..  FN13. “A successful action for tortious interference with business expectancies requires the satisfaction of three elements:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  American Diamond Exchange, Inc. v. Alpert, supra, 101 Conn.App. 90.

FN14. “․ [I]n the event that [the action between Landmark and Chung, LLC] terminates by a judgment against [Chung, LLC], [Chung, LLC] and [Calco] shall be relieved of any further obligation according to this Agreement and [Calco] shall be entitled to a return of deposit and interest which has accrued upon it.”  (Plaintiff's Exh. 6, Addendum.).  FN14. “․ [I]n the event that [the action between Landmark and Chung, LLC] terminates by a judgment against [Chung, LLC], [Chung, LLC] and [Calco] shall be relieved of any further obligation according to this Agreement and [Calco] shall be entitled to a return of deposit and interest which has accrued upon it.”  (Plaintiff's Exh. 6, Addendum.)

FN15. This court, in an action brought by Landmark against Chung, LLC for breach of the Landmark contract by reason of its failure to pay the real estate taxes, in a hearing on a motion for prejudgment remedy, admitted Kane's testimony and report and found that the “assumptions made by Kane in reaching his conclusions were based on sound methodology and recognized real estate appraisal practices, as well as factual data.”   At that hearing, the defendant Chung, LLC conceded that Kane was an expert and had no quarrel with the methodology, employed by Kane in reaching the lost profits amount.   On appeal, the Appellate Court affirmed the court's admissibility of the report and held that this court did not commit clear error.  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 137 Conn.App. 359, 371, 48 A.3d 705 (2012).   In this case, after a full trial on the merits, the court is reaching a different conclusion as to the credibility of the report.   At trial, on cross examination, there was a challenge to Kane's admissibility because the assumptions upon which he based his values had not occurred.   In Gateway, Kelso & Co. v. West Hartford No. 1, LLC, 126 Conn.App. 578, 15 A.3d 635, cert. denied, 300 Corn. 929, 16 A.3d 703 (2011), the Appellate Court determined that a finding at a prejudgment hearing is not binding on the court in a trial on the merits.   This is so because “․ the trial court's hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff's claim ․ The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action ․ [A finding in a prejudgment remedy hearing is] a less demanding standard than the preponderance of the evidence standard that applies in civil trial.   It necessarily will be the case that the evidence presented by the hearing will not be as well developed as it would be at trial ․ There is no assurance that, when a hearing on the merits is eventually reached, the evidence will be identical to the evidence adduced at the prejudgment remedy hearing.   In fact, the evidence at trial will usually be much more expansive and may include exhibits or testimony not yet available at the time of the hearing on the prejudgment remedy.”   Id., 585–6..  FN15. This court, in an action brought by Landmark against Chung, LLC for breach of the Landmark contract by reason of its failure to pay the real estate taxes, in a hearing on a motion for prejudgment remedy, admitted Kane's testimony and report and found that the “assumptions made by Kane in reaching his conclusions were based on sound methodology and recognized real estate appraisal practices, as well as factual data.”   At that hearing, the defendant Chung, LLC conceded that Kane was an expert and had no quarrel with the methodology, employed by Kane in reaching the lost profits amount.   On appeal, the Appellate Court affirmed the court's admissibility of the report and held that this court did not commit clear error.  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 137 Conn.App. 359, 371, 48 A.3d 705 (2012).   In this case, after a full trial on the merits, the court is reaching a different conclusion as to the credibility of the report.   At trial, on cross examination, there was a challenge to Kane's admissibility because the assumptions upon which he based his values had not occurred.   In Gateway, Kelso & Co. v. West Hartford No. 1, LLC, 126 Conn.App. 578, 15 A.3d 635, cert. denied, 300 Corn. 929, 16 A.3d 703 (2011), the Appellate Court determined that a finding at a prejudgment hearing is not binding on the court in a trial on the merits.   This is so because “․ the trial court's hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff's claim ․ The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action ․ [A finding in a prejudgment remedy hearing is] a less demanding standard than the preponderance of the evidence standard that applies in civil trial.   It necessarily will be the case that the evidence presented by the hearing will not be as well developed as it would be at trial ․ There is no assurance that, when a hearing on the merits is eventually reached, the evidence will be identical to the evidence adduced at the prejudgment remedy hearing.   In fact, the evidence at trial will usually be much more expansive and may include exhibits or testimony not yet available at the time of the hearing on the prejudgment remedy.”   Id., 585–6.

FN16. Kane based his finding of lost profits of $4.5 million using an alternative plan of a 27,500 square foot building with three pad sites as opposed to Landmark's original plan of a 60,800 square foot building with one pad site..  FN16. Kane based his finding of lost profits of $4.5 million using an alternative plan of a 27,500 square foot building with three pad sites as opposed to Landmark's original plan of a 60,800 square foot building with one pad site.

FN17. There was no evidence that Landmark even applied for said approvals..  FN17. There was no evidence that Landmark even applied for said approvals.

FN18. Although courts have used the terms actual loss and ascertainable loss interchangeably in the context of a tortious interference claim, such a claim requires the proof of an actual loss, as distinguished from an ascertainable loss.   In a CUTPA context, ascertainable loss “does not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case.”  Hinchliffe v. American Motors Corporation, 184 Conn. 607, 612–13, 440 A.2d 810 (1981).   Justice Armentano filed a dissent taking issue with the majority defining “ascertainable loss” under CUTPA to require less than an “actual loss.”   The dissent would hold that “a plaintiff meets the threshold requirement of ‘ascertainable loss' when he introduces evidence from which the trier of fact could find or infer that the consumer suffered an actual loss of money or property.”   (Emphasis added.)  Id., 624..  FN18. Although courts have used the terms actual loss and ascertainable loss interchangeably in the context of a tortious interference claim, such a claim requires the proof of an actual loss, as distinguished from an ascertainable loss.   In a CUTPA context, ascertainable loss “does not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case.”  Hinchliffe v. American Motors Corporation, 184 Conn. 607, 612–13, 440 A.2d 810 (1981).   Justice Armentano filed a dissent taking issue with the majority defining “ascertainable loss” under CUTPA to require less than an “actual loss.”   The dissent would hold that “a plaintiff meets the threshold requirement of ‘ascertainable loss' when he introduces evidence from which the trier of fact could find or infer that the consumer suffered an actual loss of money or property.”   (Emphasis added.)  Id., 624.

FN19. The Practice Book does not require mitigation of damages to be raised as a special defense.  Practice Book § 10–50.   There is a split of authority within the Superior Court as to whether a defendant may plead failure to mitigate damages as a special defense, and those that permit such a pleading reason that it should be allowed in order to place the plaintiff on notice that failure to mitigate will be an issue at trial.   This however places the burden on the defendant to produce affirmative evidence in order to support such a defense.   See, Whalen v. Gathoni, Superior Court, judicial district of New Haven, Docket No CV 07 5012497 (February 8, 2010)..  FN19. The Practice Book does not require mitigation of damages to be raised as a special defense.  Practice Book § 10–50.   There is a split of authority within the Superior Court as to whether a defendant may plead failure to mitigate damages as a special defense, and those that permit such a pleading reason that it should be allowed in order to place the plaintiff on notice that failure to mitigate will be an issue at trial.   This however places the burden on the defendant to produce affirmative evidence in order to support such a defense.   See, Whalen v. Gathoni, Superior Court, judicial district of New Haven, Docket No CV 07 5012497 (February 8, 2010).

FN20. Although the court charged all three criteria of the “cigarette rule” set out by the Federal Trade Commission, the plaintiff only alleged the second prong—that is, in determining whether an act or practice is unfair “whether it is immoral, unethical, oppressive, or unscrupulous.”.  FN20. Although the court charged all three criteria of the “cigarette rule” set out by the Federal Trade Commission, the plaintiff only alleged the second prong—that is, in determining whether an act or practice is unfair “whether it is immoral, unethical, oppressive, or unscrupulous.”

FN21. The plaintiff characterized this clause of the letter as Calabrese, Chung, and Chung's attorney meeting “to devise a means for Chung, LLC to renege on its obligations to Landmark thereunder.”.  FN21. The plaintiff characterized this clause of the letter as Calabrese, Chung, and Chung's attorney meeting “to devise a means for Chung, LLC to renege on its obligations to Landmark thereunder.”

FN22. See court's jury instructions, Part IIIB2 of this opinion..  FN22. See court's jury instructions, Part IIIB2 of this opinion.

FN23. The plaintiff supplied the court with several cases from other jurisdictions claiming they stood for the proposition that the payment of attorneys fees could be construed as tortious interference.   These cases are distinguishable The provision for the defense or attorneys fees was an inducement for the breach, and occurred prior to the breach.   More importantly, the payment of legal fees was relied on by the breaching party.   In this case the defendants were loaning the money to Chung, LLC, after the breach occurred, and could not be found as an inducement for the breach as a matter of law.   Furthermore, Chung, LLC was providing security for the loans.   In addition, the last check provided by Calco was issued approximately two weeks prior to the issuance of the decision by the trial court finding the October 27, 2006, termination an unlawful breach of the contract..  FN23. The plaintiff supplied the court with several cases from other jurisdictions claiming they stood for the proposition that the payment of attorneys fees could be construed as tortious interference.   These cases are distinguishable The provision for the defense or attorneys fees was an inducement for the breach, and occurred prior to the breach.   More importantly, the payment of legal fees was relied on by the breaching party.   In this case the defendants were loaning the money to Chung, LLC, after the breach occurred, and could not be found as an inducement for the breach as a matter of law.   Furthermore, Chung, LLC was providing security for the loans.   In addition, the last check provided by Calco was issued approximately two weeks prior to the issuance of the decision by the trial court finding the October 27, 2006, termination an unlawful breach of the contract.

FN24. “Initially, the claim that the jury contemptuously or flippantly disregarded its duty in considering a matter submitted to it can be the proper subject of a motion for a new trial.”  Wilburn v. Eastman Kodak Co., 180 F.3d 475, 476 (2d.   Cir.1999).   See also, Kearns v. Keystone Shipping Co., 863 F.2d 177 (1st Cir.1988) (addressing the trial court's determination that the jury acted in a “casual and nondeliberative manner” in reaching its verdict in a short period of time).   Nevertheless, “[b]rief jury deliberation is not, in itself, sufficient basis to support a new trial motion.   The United States Court of Appeals for the Fourth Circuit once upheld the trial court's denial of a new trial motion where the jury had deliberated only four minutes, Segars v. Atlantic Coast Line R.R, 286 F.2d 767 (4th Cir1961), and the Fifth Circuit Court of Appeals has stated that ‘[i]f the evidence is sufficient to support the verdict, the length of time the jury deliberates is immaterial.’  Marx v. Hartford Accident & Indemnity Co., 321 F.2d 70, 71 (5th Cir.1963).   When brief jury deliberation is coupled with a verdict that is contrary to the great weight of the evidence, however, it creates a situation where the district court has an affirmative duty to set aside the verdict.   See Borras v. Sea–Land Service, Inc., 586 F.2d 881, 886 (1st Cir1978) (quoting Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.1941) (‘Even though there may be substantial evidence that would prevent the direction of a verdict or a judgment n.o.v., it is “the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence ․” ’)” Kearns v. Keystone Shipping Co, supra, 863 F.2d 182..  FN24. “Initially, the claim that the jury contemptuously or flippantly disregarded its duty in considering a matter submitted to it can be the proper subject of a motion for a new trial.”  Wilburn v. Eastman Kodak Co., 180 F.3d 475, 476 (2d.   Cir.1999).   See also, Kearns v. Keystone Shipping Co., 863 F.2d 177 (1st Cir.1988) (addressing the trial court's determination that the jury acted in a “casual and nondeliberative manner” in reaching its verdict in a short period of time).   Nevertheless, “[b]rief jury deliberation is not, in itself, sufficient basis to support a new trial motion.   The United States Court of Appeals for the Fourth Circuit once upheld the trial court's denial of a new trial motion where the jury had deliberated only four minutes, Segars v. Atlantic Coast Line R.R, 286 F.2d 767 (4th Cir1961), and the Fifth Circuit Court of Appeals has stated that ‘[i]f the evidence is sufficient to support the verdict, the length of time the jury deliberates is immaterial.’  Marx v. Hartford Accident & Indemnity Co., 321 F.2d 70, 71 (5th Cir.1963).   When brief jury deliberation is coupled with a verdict that is contrary to the great weight of the evidence, however, it creates a situation where the district court has an affirmative duty to set aside the verdict.   See Borras v. Sea–Land Service, Inc., 586 F.2d 881, 886 (1st Cir1978) (quoting Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.1941) (‘Even though there may be substantial evidence that would prevent the direction of a verdict or a judgment n.o.v., it is “the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence ․” ’)” Kearns v. Keystone Shipping Co, supra, 863 F.2d 182.

FN25. Because of the court's ruling on this motion, the court does not need to address the plaintiff's post-verdict motions..  FN25. Because of the court's ruling on this motion, the court does not need to address the plaintiff's post-verdict motions.

Swienton, Cynthia K., J.