Benchmark Municipal Tax Services, Ltd. v. Greenwood Manor, LLC ( 2019 )

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BENCHMARK MUNICIPAL TAX SERVICES, LTD.
v. GREENWOOD MANOR, LLC, ET AL.
(AC 41924)
Prescott, Bright and Devlin, Js.
Syllabus
The plaintiff, B Co., sought to foreclose certain municipal property tax liens
on property then owned by the defendant, G Co. The trial court granted
G Co.’s motion to cite in the city of Bridgeport as a defendant, and G.
Co. filed cross claims against the city and a codefendant, M. G Co.
claimed, inter alia, that M tortiously interfered with its intended sale of
the property to the city and that the city interfered with a proposed
zoning change that would have increased the value of the property.
Thereafter, the city was substituted as the plaintiff and M Co. was
substituted as the defendant. The trial court rendered judgment in favor
of the city and M against M Co. on the cross claims and denied M Co.’s
motion to reargue. On M Co.’s appeal to this court, held:
1. The trial court did not err in finding that M Co. failed to establish any
tortious action by M; the trial court did not credit any evidence offered
by M Co. in support of its allegation that M had acted to interfere
with negotiations between the city and G Co., which never reached an
agreement with the city for a purchase price for the property, and M
Co. failed to allege on appeal any legal error or an erroneous factual
basis for the trial court’s decision.
2. M Co.’s claim that the trial court erred in finding that the city did not
tortiously interfere with the business relationship that existed between
G Co. and M failed as a matter of law; M Co.’s claim consisted of nothing
more than a request for this court to substitute its own evaluation of
the evidence for that of the trier of fact, which this court would not do,
and M Co. failed to demonstrate that the trial court either misapplied
the law or relied on clearly erroneous factual findings in reaching its
decision.
3. The trial court did not err in finding that the city did not act improperly
to devalue the property; M Co. presented no evidence that any member
of the planning and zoning commission acted improperly in deciding
not to change the zoning designation of the property, the trial court
was free to reject an inference that members of the commission acted
improperly and to conclude that the commission may have decided
against a zone change for the subject property, despite initial support
for a change, for a reason other than improper interference by the city,
and M Co. conceded at oral argument before this court that tortious
interference was not the only reasonable inference the trial court could
have drawn based on the evidence presented.
Argued September 13—officially released November 19, 2019
Procedural History
Action to foreclose certain municipal property tax
liens, and for other relief, brought to the Superior Court
in the judicial district of Bridgeport, where the court,
Hartmere, J., granted the named defendant’s motion
to cite in the city of Bridgeport as a defendant; there-
after, the named defendant filed cross claims against
the city of Bridgeport et al.; subsequently, the court,
Tyma, J., granted the motion of the city of Bridgeport
to be substituted as the plaintiff; thereafter the court,
Hon. Richard P. Gilardi, judge trial referee, granted
the named defendant’s motion to substitute Main Street
Business Management, Inc., as the defendant; subse-
quently, the cross claims were tried to the court, Rad-
cliffe, J.; judgment in favor of the City of Bridgeport
et al.; thereafter, the court, Radcliffe, J., denied the
substitute defendant’s motion to reargue, and the sub-
stitute defendant appealed to this court. Affirmed.
Jonathan J. Klein, for the appellant (substitute
defendant-cross claim plaintiff Main Street Business
Management, Inc.).
Thomas W. Moyher, with whom, on the brief, was
James M. Nugent, for the appellee (cross claim defen-
dant Manuel Moutinho).
Juda J. Epstein filed a brief for the appellee (substi-
tute plaintiff city of Bridgeport).
Opinion
PRESCOTT, J. In this action to foreclose certain
municipal property tax liens on a 9.9 acre parcel of
property in Bridgeport (property),1 the substitute defen-
dant and cross claim plaintiff, Main Street Business
Management, Inc. (Main Street),2 appeals from the trial
court’s judgment rendered against it on its cross claim
alleging that the cross claim defendant, Manuel Mou-
tinho, tortiously interfered with a business expectancy
and violated the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110 et seq. (CUTPA), and on
its counterclaim alleging that the city engaged in tor-
tious interference with a business expectancy and
improperly sought to affect the property’s value
adversely by interfering with a proposed zone change.3
On appeal, Main Street, as Greenwood’s successor
in interest, claims that the court improperly determined
that (1) Moutinho did not tortiously interfere with a
proposed sale of the property by Greenwood to the
city, (2) the city did not tortiously interfere with the
business relationship between Greenwood and Mou-
tinho, and (3) the city did not tortiously interfere by
causing the city’s planning and zoning commission
(commission) to reject a zoning reclassification that
would have benefited Greenwood by increasing the
property’s marketability. We disagree and affirm the
judgment of the trial court.4
The following facts, which either were found by the
court or are not in dispute, and procedural history are
relevant to our disposition of the claims on appeal. In
January, 2009, after years of negotiations, Moutinho
finalized a sale of the property to Greenwood, exchang-
ing a warranty deed for a purchase money mortgage of
$2 million. Greenwood intended to develop the property
for use as a multiunit residential complex. Such use,
however, was not permitted at the time the sale closed
because the property was zoned R-A, or single-family
residential, and thus required a zone change to R-C,
or multifamily residential, in order to be developed in
accordance with Greenwood’s plan.
Although Greenwood never filed a zone change appli-
cation, it was aware that, in 2008, the commission had
begun the process of revising the city’s master plan
of development and was engaged in a comprehensive
reevaluation of zoning regulations and zoning districts
throughout the city. As part of this process, the commis-
sion considered whether to adopt a zone change for the
property from R-A to R-C.5 Ultimately, the commission
decided to leave the zoning classification for the prop-
erty unchanged.
Both before and after Moutinho finalized his sale
of the property to Greenwood, the city expressed an
interest in purchasing the property for use in a flood
plain control project and for other purposes. The city
engaged in negotiations with Moutinho, both during the
time he owned the property and later as the holder of
an interest in the property by virtue of the mortgage
deed received from Greenwood. The city also negoti-
ated with Greenwood to buy the property. The city
never entered into a contract for sale with either Mou-
tinho or Greenwood, as there was never a meeting of
the minds regarding a sale price.6
In August, 2011, Benchmark, which had acquired
from the city certain liens for delinquent property taxes
assessed against the property in 2008 and 2009, com-
menced this action to foreclose those liens. At that time,
the property was encumbered by a number of other
liens and interests that were subsequent in right, includ-
ing the mortgage held by Moutinho.
Greenwood filed an answer and special defenses to
the foreclosure complaint. It subsequently also filed
cross claims against the city and Moutinho.7 The grava-
men of the allegations underlying Greenwood’s cross
claims was that Moutinho and the city had participated
in a scheme to prevent a sale of the subject property
from Greenwood to the city with the intent that Mou-
tinho would foreclose on his mortgage and, after reac-
quiring title, sell the property to the city himself at a
price lower than that proposed by Greenwood. Green-
wood further alleged that the city had somehow inter-
fered with the sale of the property from Moutinho to
Greenwood and, hoping to diminish the property’s value
to Greenwood’s detriment, also interfered by meddling
in the commission’s consideration of a zone change
affecting the property.
On May 8, 2018, in accordance with a stipulation by
the parties, the trial court, Radcliffe, J., rendered a
partial judgment as to liability on the foreclosure com-
plaint, determining that the amount of debt owed by
Main Street to the city was $84,345.52. The trial court
did not determine at that time either the fair market
value of the property or whether the foreclosure of the
property should be a strict foreclosure or a foreclosure
by sale.8
The court then conducted a two day trial on the cross
claim and counterclaim. On May 11, 2018, the trial court
rendered a judgment in favor of Moutinho on the cross
claim and in favor of the city on the counterclaim. With
respect to Moutinho, the court found that he had never
interfered with any business relationship that existed
between the city and Greenwood. Although the court
found that Moutinho and his attorney had met with
city officials regarding the property, including with Bill
Finch, the city’s mayor at the time, the court found that
Finch never directed city officials to cease negotiations
with Greenwood regarding a sale price or to negotiate
exclusively with Moutinho. With respect to the counter-
claim against the city, the court found that the city
properly was entitled to negotiate with both Moutinho
and Greenwood about acquiring the property and that
it never engaged in any fraud or other improper action
that would support a cause of action for tortious inter-
ference. The court further found that there was no
improper action taken by the city with respect to the
comprehensive rezoning of city property, including the
decision not to change the zoning classification for the
subject property. This appeal followed.9 Additional facts
will be set forth as necessary.
I
Main Street first claims that the court improperly
found that Moutinho did not tortiously interfere with
a proposed sale of the property by Greenwood to the
city. Moutinho counters that the court correctly deter-
mined that Main Street failed to meet its burden of
proving that any contract or other business expectancy
existed between the city and Greenwood or, in the
alternative, that he ever engaged in any tortious conduct
intended to interfere with any business expectancy even
if one existed. We agree that Main Street failed to estab-
lish any tortious action by Moutinho and, accordingly,
the court properly ruled in his favor.10
‘‘It is well established that the elements of a claim
for tortious interference with business expectancies
are: (1) a business relationship between the plaintiff
and another party; (2) the defendant’s intentional inter-
ference with the business relationship while knowing
of the relationship; and (3) as a result of the interfer-
ence, the plaintiff suffers actual loss. . . . The plaintiff
need not prove that the defendant caused the breach
of an actual contract; proof of interference with even
an unenforceable promise is enough. . . . A cause of
action for tortious interference with a business expec-
tancy requires proof that the defendant was guilty of
fraud, misrepresentation, intimidation or molestation
. . . or that the defendant acted maliciously. . . . It is
also true, however, that not every act that disturbs a
contract or business expectancy is actionable. . . . A
defendant is guilty of tortious interference if he has
engaged in improper conduct. . . . [T]he plaintiff [is
required] to plead and prove at least some improper
motive or improper means.’’ (Citation omitted; empha-
sis added; internal quotation marks omitted.) Brown v.
Otake, 164 Conn. App. 686, 709–10, 138 A.3d 951 (2016).
‘‘Stated simply, to substantiate a claim of tortious inter-
ference with a business expectancy, there must be evi-
dence that the interference resulted from the defen-
dant’s commission of a tort.’’ (Internal quotation marks
omitted.) Id., 710.
Whether a party intended tortiously to interfere with
a business expectancy is a question of fact. Loiselle v.
Browning & Browning Real Estate, LLC, 147 Conn.
App. 246, 259, 83 A.3d 608 (2013). If a ‘‘claim challenges
the accuracy of the court’s factual findings, our review
is limited to the clearly erroneous standard. In a case
tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be
given specific testimony. . . . On appeal, we will give
the evidence the most favorable reasonable construc-
tion in support of the [judgment] to which it is entitled.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . [A] finding of fact must stand if, on the basis of
the evidence before the court and the reasonable infer-
ences to be drawn from that evidence, a trier of fact
reasonably could have found as it did.’’ (Internal quota-
tion marks omitted.) Id. As a reviewing court, ‘‘[w]e
cannot act as a factfinder or draw conclusions of facts
from the primary facts found, but can only review such
findings to determine whether they could legally, logi-
cally and reasonably be found, thereby establishing that
the trial court could reasonably conclude as it did.’’
Selby v. Pelletier, 1 Conn. App. 320, 327, 472 A.2d 1285
(1984). Moreover, ‘‘the fact that there is support in the
record for a different conclusion [than the one reached
by the court] is irrelevant at this stage in the judicial
process. On appeal, we do not review the evidence to
determine whether a conclusion different from the one
reached could have been reached. . . . [Instead] [w]e
review the totality of the evidence, including reasonable
inferences therefrom, to determine whether it could
support the trier’s decision.’’ (Citation omitted.) Ameri-
can Diamond Exchange, Inc. v. Alpert, 101 Conn. App.
83, 101, 920 A.2d 357, cert. denied, 284 Conn. 901, 931
A.2d 261 (2007).
In the present case, it is reasonable to infer from the
court’s ruling in favor of Moutinho that the court chose
not to credit any of the evidence offered by Main Street
in support of its allegation that Moutinho had acted to
interfere with negotiations between the city and Green-
wood, which never reached any agreement with the
city about a sale price for the property. Primarily, Main
Street’s evidence that Moutinho tortiously interfered
consisted of a meeting between Moutinho and the
mayor that the court found had occurred in 2008. From
its brief, it is not entirely clear how Main Street contends
that this meeting in 2008 interfered with the negotia-
tions between the city and Greenwood that took place
in 2009, after Greenwood had acquired the property
from Moutinho. Nevertheless, rather than directing our
attention to any legal error or an erroneous factual basis
that would tend to undermine the court’s determination
that Main Street failed to meet its burden of demonstra-
ting a tortious interference by Moutinho in the failed
negotiations between Greenwood and the city, Main
Street, in effect, asks us to reexamine the evidence and
to come to a different conclusion than the one reached
by the trial court. As we have explained, this is outside
the scope of our review.
At trial, Main Street offered testimony from Green-
wood’s principal, Gus Curcio, regarding Greenwood’s
efforts to sell the property to the city. Curcio testified
on direct examination that he believed that ‘‘Moutinho
repeatedly went to the city and told them not to buy
[the property] from [Greenwood] . . . because he was
going to foreclose. He would sell it to them cheaper.
Repeatedly. Not once. Not twice. But several times.’’
On cross examination, however, Curcio admitted that
he had no documentary evidence to support his asser-
tions that Moutinho had instructed or asked the city not
to purchase the property from Greenwood. He further
testified that he had no personal knowledge of any
conversations between Moutinho and anyone associ-
ated with the city.
Finch later testified that at some point Moutinho’s
attorney had contacted him to explain that Moutinho
was going to foreclose on his mortgage to acquire the
property and that the city should deal with Moutinho
rather than Greenwood. Finch, however, was unable to
say why the city ultimately elected to stop negotiating
with Greenwood. He explained that he never instructed
the city to end negotiations with Greenwood at the
request of Moutinho or his attorney. Main Street has
not directed our attention to any other evidence that
would support an inference that Moutinho acted in a
manner amounting to fraud, misrepresentation, intimi-
dation, or extortion. The court was free to disregard
Curcio’s unsupported and self-serving testimony. We
simply cannot conclude on the basis of the record pre-
sented that the court’s finding that Main Street failed
to demonstrate tortious interference by Moutinho is
clearly erroneous.
II
Main Street next claims that the court improperly
found that the city did not tortiously interfere with the
business relationship that existed between Greenwood
and Moutinho. As with the prior claim, Main Street’s
arguments on appeal consist of nothing more than a
request for us to substitute our own evaluation of the
evidence for that of the trier of fact, which, as we have
explained, we will not do. Because Main Street has
failed to demonstrate that the court either misapplied
the law or relied on clearly erroneous factual findings
in reaching its decision, this claim fails as a matter
of law.
III
Finally, Main Street claims that the court improperly
concluded that the city had not acted improperly to
devalue the property by causing the commission to
reject a proposed zoning reclassification that arguably
would have increased the property’s value. We are
not persuaded.
The following facts are relevant to our discussion of
this claim, and include, in part, facts set forth by this
court in Greenwood Manor, LLC v. Planning & Zoning
Commission, 150 Conn. App. 489, 90 A.3d 1062, cert.
denied, 312 Conn. 927, 95 A.3d 521 (2014), of which the
trial court took judicial notice. As previously set forth,
at the time Moutinho conveyed the property to Main
Street’s predecessor in interest, Greenwood, the prop-
erty was situated in an R-A zone classified for single-
family residences. Greenwood understood that a
change in the property’s zone classification from R-A
to R-C would be needed in order to utilize the property
for denser residential development. The commission
was in the process of revising the city’s master plan
of development, and the commissioners had several
preliminary discussions in which some commissioners
expressed an interest in rezoning the property from R-
A to R-C.
A preliminary vote in April, 2009, suggested that there
was support for a zone change, with six commissioners
voting in favor and only one voting against. In August,
2009, Finch sent a letter to the commission proposing an
unrelated amendment to the proposed revised master
plan. In that letter, Finch also asked that the full com-
mission not adopt proposed zone changes for three
parcels, including the subject property, from low den-
sity residential land use arguing that the rezoning of
those parcels ‘‘ha[d] become a distraction from the
larger reforms at stake in the adoption of this progres-
sive master plan and our new zoning regulations.’’ Addi-
tional public hearings were held in September, October
and November, 2009. See Greenwood Manor, LLC v.
Planning & Zoning Commission, supra, 150 Conn.
App. 493–97. At those hearings, the commission heard
from a number of individuals, some of whom spoke in
favor of rezoning the property and others who advo-
cated for leaving the zone classification unchanged. Id.
A preliminary vote taken at the November 14, 2009
hearing was five to three in favor of taking no action
with respect to the property. Id., 497. When the issue
was put to a final vote on November 30, 2009, no change
in zone for the property was approved, with the commis-
sioners voting six to three against a zone change. Id.,
498.
Greenwood appealed from the final vote to the Supe-
rior Court, which dismissed the appeal on the ground
that Greenwood was neither statutorily nor classically
aggrieved by the commission’s decision. Id., 498–99.
This court, after granting certification to appeal,
affirmed the decision of the Superior Court. See id.,
492.11
In its appellate brief, Main Street concedes that ‘‘there
was no direct evidence adduced at trial that [the mayor]
or anyone else in city government exercised improper
influence or coerced any member of the commission
to leave the zone designation of the property unchanged
when the commission formally voted on a package of
zoning changes . . . .’’ Nevertheless, Main Street con-
tends that the ‘‘only evidence of an explanation for
[the commission’s] turnaround was Finch’s letter to the
commission stating that the proposed change was a
‘distraction’.’’ Main Street argues that it goes against
common sense that the letter alone would have con-
vinced commissioners to change their votes and that
the only reasonable inference the court could have
drawn was that the vote change was the result of tor-
tious interference. We are wholly unpersuaded for the
following reasons.
First, the city had no burden to demonstrate a ratio-
nale for the commission’s decision. Rather, it was Main
Street’s burden to show by a preponderance of the
evidence that the commission changed its vote on the
zone change as a result of the tortious interference of
the city. Second, the trial court expressly found that
no evidence was presented that any member of the
commission ‘‘acted improperly, was subject to a conflict
of interest or in any way failed to discharge the duties
of a member of [the commission] in this matter.’’ Main
Street admits that it failed to present such evidence,
but nevertheless suggests that the court should have
inferred from the circumstances presented that it met
its burden of demonstrating tortious interference. The
court, however, was entirely free to reject the inference
suggested by Main Street and to conclude that the com-
mission changed its decision for a reason other than
improper interference by the city. Moreover, such a
contrary inference is supported by the record. In this
court’s opinion dismissing the zoning appeal, we identi-
fied a number of possible reasons why the commission
may have decided against the zone change despite initial
support for a change, including the impassioned argu-
ments of residents against a zone change. See Green-
wood Manor, LLC v. Planning & Zoning Commission,
supra, 150 Conn. App. 495–96. Finally, Main Street con-
ceded at oral argument before this court that tortious
interference was not the only reasonable inference that
the court could have drawn on the basis of the record
before it. For all these reasons, we reject this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original plaintiff, Benchmark Municipal Tax Services, Ltd. (Bench-
mark), acquired from the city of Bridgeport (city) the tax liens that are
the subject matter of the foreclosure action. During the pendency of the
foreclosure action, however, Benchmark conveyed those liens back to the
city, which later was substituted as the plaintiff.
2
The original named defendant, Greenwood Manor, LLC (Greenwood),
conveyed the property to Main Street on January 8, 2014, after this action
was commenced. At the same time, Greenwood assigned to Main Street all
of its rights and interests with respect to the foreclosure action, and Main
Street was substituted as a defendant.
In addition to Greenwood, the foreclosure complaint named the following
additional parties as defendants by virtue of an interest in the property that
was subsequent in right to the tax liens: Manuel Moutinho; Greenwood
Estates, Inc.; Rio, Inc.; Regensburger Enterprises, Inc.; Millionair Club, Inc.;
Cummings Enterprises, Inc.; Albina Pires; Robin Cummings; Joseph Regen-
sburger; Richard Urban; and Dominique Worth. Of these parties, only Mou-
tinho is a participant in the present appeal.
3
Although the court had not rendered a final judgment on the foreclosure
complaint at the time this appeal was filed, the judgment disposing of the
cross claim and counterclaim was, nonetheless, immediately appealable.
See Practice Book § 61-2 (‘‘[w]hen judgment has been rendered on an entire
. . . counterclaim or cross complaint . . . such judgment shall constitute
a final judgment’’).
4
Main Street also claims on appeal that the court improperly ruled against
it on its CUTPA count. The court, however, provided three grounds for
rejecting the CUTPA claim: (1) Main Street failed to satisfy the so-called
‘‘cigarette rule’’; (2) Main Street failed to demonstrate an ascertainable loss;
and (3) the transaction did not involve consumers. On appeal, Main Street
challenges only the second and third grounds. Main Street’s failure to raise
and brief any challenge to the court’s ruling regarding the cigarette rule, a
failure that it acknowledged at oral argument before this court, renders
moot its other challenges to the court’s rejection of the CUTPA count. See
State v. Lester, 324 Conn. 519, 527, 153 A.3d 647 (2017) (if ‘‘an appellant
challenges a trial court’s adverse ruling, but does not challenge all indepen-
dent bases for that ruling, the appeal is moot’’). Accordingly, we dismiss as
moot that portion of Main Street’s appeal challenging the court’s ruling on
the CUTPA count.
5
As part of its comprehensive review of the city’s zoning map, the commis-
sion considered proposed changes to the zoning map with respect to several
individual parcels, including the subject property. See Greenwood Manor,
LLC v. Planning & Zoning Commission, 150 Conn. App. 489, 493–94, 90
A.3d 1062, cert. denied, 312 Conn. 927, 95 A.3d 521 (2014).
6
The evidence admitted at trial demonstrated that the city had sent Green-
wood a proposed sale contract that did not contain a purchase price. Green-
wood responded, offering to sell the property for $3.5 million, which the
city did not accept. Thereafter, negotiations ended.
7
When the city later reacquired the tax liens from Benchmark and was
substituted as the plaintiff, the cross claim technically became a counter-
claim. See Practice Book § 10-10 (‘‘any defendant may file counterclaims
against any plaintiff and cross claims against any codefendant’’). Therefore,
we refer to the cross claim against the city as the counterclaim.
8
As the court later explained in its memorandum of decision resolving
the cross claim and counterclaim, it ‘‘refused to find that the fair market value
was $100,000 [as stipulated by the parties] in the absence of an appraisal
or any other expert testimony to that effect. That refusal [is supported by]
the testimony in this case, which shows that the property was purchased
for $900,000 and that there are various encumbrances in the millions of
dollars on [the] property. The court refused to accept [the stipulated fair
market value] and, in the absence of an appraisal, refused to find that the
remedy by way of strict foreclosure was appropriate rather than foreclosure
by sale, and that determination was left to another day.’’
9
On July 24, 2018, the city moved for a judgment of strict foreclosure.
On August 17, 2018, Moutinho filed a motion to terminate the automatic
appellate stay triggered by the present appeal so that the foreclosure action
could proceed. The trial court granted that motion on September 17, 2018.
Main Street filed a motion for review of the ruling. On January 9, 2019, this
court granted review but denied the relief requested. Because the claims
for money damages in tort at issue in the present appeal survive even after
title to the property vests in another party, there is no danger that the
present appeal would be rendered moot as a result of the lifting of the stay.
10
Because we agree that Main Street failed to prove that Moutinho’s
actions were tortious, it is unnecessary to consider Moutinho’s arguments
that a business expectancy never existed between the city and Greenwood
or that Main Street failed to demonstrate any actual loss.
11
We held that if a zoning commission, during the process of sua sponte
amending its zoning regulations or zoning map, refrains from altering in
any manner the zoning classification of a particular property, and that prop-
erty had not been specified as the subject of any application then before
the commission, the property was not ‘‘land involved in the decision’’ of
the commission pursuant to General Statutes § 8–8 (a) (1), and, therefore,
the owner of such property was not statutorily aggrieved by the commission’s
inaction. Greenwood Manor, LLC v. Planning & Zoning Commission, supra,
150 Conn. App. 512. Furthermore, the owner of property not the subject of
any zone change application was not classically aggrieved by a decision
that retained that property’s current zoning designation because the owner
was not specially and injuriously affected by the commission’s decision to
maintain the status quo. Id., 513–14.