Anthony Dato et al. v. Norberto Rondinella et al. (2014)

MEMORANDUM OF DECISION

This litigation has its commencement on or about July 28, 2009 when the plaintiff Anthony Dato doing business as Blue Note Spirits and Wines, Inc. (Buyer) entered into a written agreement with Norberto Rondinella doing business as Best Buy Liquor, LLC (Seller) whereby the Buyer and the Seller agreed that the Buyer would purchase a liquor store business located in New Haven, Connecticut, known as Best Buy Liquor, LLC from the Seller.   The agreement provided for a purchase price of $95,000.00, plus inventory.   The Buyer paid $5,000.00 to the Seller's attorney (Escrow Agent) upon the signing of the agreement.

The agreement provided that the Buyer's obligation to purchase was contingent on his ability to obtain a lease with the landlord of the premises where the liquor business was located that was “satisfactory ․ for terms agreeable to the Buyer.”   The sale of the business did not occur because the Buyer claimed that he was unable to obtain a satisfactory lease with the landlord and he cancelled the contract based on the failure to fulfill a contingency.

After the Buyer cancelled the contract the Seller refused to return the $5,000.00 deposit being held by the Seller's attorney.   The Buyer then filed a small claims writ to recover his $5,000.00 deposit.   Named as defendants were the Seller and Robert Pinciaro as Escrow Agent.   The Seller filed a motion to transfer the case to the regular docket of the Superior Court and a counterclaim seeking money damages of $95,000.00 for breach of contract.   The defendant denies the essential allegations of the small claims writ and the plaintiff denies the essential allegations of the counterclaim.

The dispute between the parties involves the question of whether the Buyer was unable to reach agreement on the terms of the lease with the landlord.   This court heard this case in a bench trial on October 16, 2013.   The witnesses consisted of the Buyer Anthony Dato, Attorney Robert Pinciaro who is the defendant's escrow agent, and the Seller Norberto Rondinella.   The parties made oral argument to the court after the evidence was completed.

The court finds the following facts and reaches the following conclusions.   The specific contingency that the Buyer claims entitled him to cancel the contract and have his $5,000.00 deposit repaid is his claim that he was unable to obtain a lease with the owner of the premises where the business is located under terms satisfactory to him.   The owner of the premises, Attorney John Acampora, is not a party to this litigation and was not called as a witness.

The plaintiff testified that the source of the problem that prevented him from obtaining a lease from Mr. Acampora was Acampora's insistence that the plaintiff accept the building as is without the various deficiencies being corrected by Mr. Acampora.   The plaintiff submitted a substantial list of repairs needed to be done (Pl.Ex. 8, p. 2) before he would agree to the lease.   Mr. Acampora was willing to repair only the roof.   The list included 9 specific items that the plaintiff Buyer was insisting be repaired.

The plaintiff Buyer also claimed at trial that an additional area of disagreement with Mr. Acampora was that the defendant Seller wanted to use approximately $33,000.00 out of the $90,000.00 in escrow money that the Buyer posted to finance the defendant Seller's expenses prior to the closing in violation of Section V.B. of the agreement.   This claim was not made in the small claims action brought by the Buyer and will not be included in ruling on the merits of this case.

Attorney Robert Pinciaro who served as the “escrow agent” in this case was offered by the Seller as a witness.   Mr. Pinciaro, who is the holder of the $5,000.00 deposit, admitted that he was not involved in the negotiations for the lease.   He reviewed Def. Ex. C and gave his opinion that it appeared from that exhibit that the Buyer had negotiated an acceptable lease with Mr. Acampora.   This opinion was given although Def. Ex. C. includes an e-mail from the Buyer to his attorney that states that “we will take it as long as the date for completion of the new roof is acceptable ․” The Buyer testified that the inability to agree on a date by which the new roof would be completed by the landlord prevented a lease from being signed.   Negotiations terminated when the Buyer's attorney Ann Farrel Leslie notified Mr. Pinciaro by way of a letter dated October 14, 2009 (Def.Ex. D) that her client Mr. Dato had advised her that he and the landlord had been unable to reach a satisfactory resolution regarding the repairs needed at the property address, that the contract between Best Buy Liquors and Blue Note Spirits and Wines was null and void, and that the $5000.00 deposit should be returned to her office as soon as possible.

Mr. Pinciaro testified that while he was not involved in the negotiations for the lease he was in touch with the landlord Mr. Acampora, with Attorney Leslie and his client Mr. Rondinella.   He thought that there was an agreement as to terms because they were planning the closing stage so he concluded that they had reached agreement on the lease.

The court finds that the Buyer has proven that he was unable to reach an agreement with Mr. Acampora as to when the construction of the new roof would be completed.   The Buyer so testified based on his conversation with Mr. Acampora.   The evidence to the contrary was predicated upon Mr. Pinciaro's “beliefs” and assumptions which appear to be based upon his conclusions reached because of other facts which he believed existed.   As indicated above, Mr. Acampora did not testify.

The court finds that the testimony of the Buyer is more reliable than that of Mr. Pinciaro on the issue of whether agreement had been reached on all of the terms of the lease of the liquor store.

The Seller's counterclaim is based on the claim that the Buyer refused to close the transaction even though all contingencies for the lease were met.   In view of the court's finding that the Buyer was unable to reach agreement with the landlord on all of the terms of the lease, a judgment may enter in favor of the Buyer on the counterclaim.

A judgment may enter in favor of the Buyer plaintiff on the complaint as against the Seller defendant in the sum of $5000.00 plus costs.   Robert Pinciaro is ordered to pay the $5,000.00 being held in escrow to the Buyer plaintiff, which payment will satisfy the judgment of $5,000.00.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.