Al Dente, LLC v. Consiglio , 171 Conn. App. 576 ( 2017 )

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AL DENTE, LLC, ET AL. v. RICHARD E. CONSIGLIO,
EXECUTOR (ESTATE OF FLORA CONSIGLIO), ET AL.
(AC 38279)
DiPentima, C. J., and Prescott and Alander, Js.
Argued December 6, 2016—officially released March 21, 2017
(Appeal from Superior Court, judicial district of New
Haven, Frechette, J.)
Laurence V. Parnoff, with whom, on the brief, was
Laurence V. Parnoff, Jr., for the appellants (plaintiffs).
Daniel P. Scholfield, with whom, on the brief, was
Hugh F. Keefe, for the appellees (named defendant
et al.).
Lawrence J. Greenberg, for the appellee (defendant
Ruth Consiglio).
Opinion
PRESCOTT, J. The plaintiffs, Al Dente, LLC, and Car-
mine Capasso, appeal from the summary judgment ren-
dered by the trial court in favor of the defendants,
Robert G. Consiglio, Ruth F. Consiglio, and Richard E.
Consiglio, individually, and as executor of the estate
of Flora Consiglio. The plaintiffs claim that the court
improperly concluded that no genuine issue of material
fact existed as to any count of their operative complaint.
We affirm the judgment of the trial court.
Mindful of the procedural posture of the case, we set
forth the following facts as gleaned from the pleadings,
affidavits, and other proof submitted, viewed in a light
most favorable to the plaintiff. See Martinelli v. Fusi,
290 Conn. 347, 350, 963 A.2d 640 (2009). The defendants
are owners of Sally’s Apizza (Sally’s), a culinary land-
mark on Wooster Street in New Haven. In 2013, the
defendants entertained offers to purchase Sally’s and
the land on which it is situated. One such offer was
made on December 3, 2013, by ‘‘Al Dente, LLC, a to be
formed Connecticut limited liability company’’ com-
prised of Capasso and five other individuals, including
his brother, Vincent Capasso, Kristen Keslow, Marc Kes-
low, and Tara Knight (collectively, original entity).1
Weeks earlier, the original entity had retained Brenner,
Saltzman & Wallman, LLP (law firm), to help prepare
that offer and to organize Al Dente, LLC. The November
26, 2013 retainer agreement furnished by the law firm
and ‘‘[a]ccepted, acknowledged, and agreed to’’ by
Capasso was addressed to six individuals—Knight,
Capasso, Kristen Keslow, Marc Keslow, Vincent,
Capasso’s brother, and Giuseppe DeLucia—and out-
lined ‘‘the terms and conditions upon which [the law
firm] will undertake to represent you. . . . In connec-
tion with the organization of Al Dente, LLC, we will
undertake to represent the new entity and the six of you
collectively in your capacity as organizers and initial
owners of Al Dente, LLC.’’2 The law firm drafted the
December 3, 2013 written agreement to purchase Sal-
ly’s, which Capasso signed on behalf of the original
entity.
The defendants received several bids in excess of
one million dollars. Capasso thereafter grew concerned
that the original entity’s bid was being ‘‘used to get
[other bidders] to offer more and to increase [the] pur-
chase price . . . .’’ He therefore informed the defen-
dants that the original entity would not ‘‘continue with
the purchase of Sally’s unless [they] came to an
agreement [on] a bidding process to set the [c]ontract
purchase price and to keep final bids confidential.’’ On
March 27, 2014, members of the original entity met with
certain defendants and their legal representatives, at
which time they orally agreed to the following protocols
regarding the bidding process for the purchase of Sally’s
(collectively, bidding agreement): (1) initial bids would
be disclosed to all parties presenting offers; (2) final
bids would be due by 5 p.m. on April 14, 2014; (3) the
identities of the bidding parties would remain confiden-
tial; (4) any bids submitted after that deadline would
not be accepted; and (5) the highest bid would set the
sale price. The defendants further agreed to ‘‘commence
negotiations for sale with the highest bidder’’ following
the submission of final bids. Consistent with the forego-
ing, Attorney Robert W. Lynch, acting on behalf of the
defendants,3 disclosed the results of the first round of
bidding in an April 7, 2014 e-mail to the bidding parties.
In that correspondence, Lynch also apprised the parties
that ‘‘[t]here will be one more round of bidding with
all bids due by 5 p.m.’’ on April 14, 2014.
Capasso submitted a timely second bid on behalf of
the original entity in an April 14, 2014 e-mail to Lynch.
Attached to that e-mail was a letter addressed to the
defendants regarding the ‘‘Purchase and Sale of Assets
and Real Property.’’ That correspondence contained a
proposed ‘‘agreement [that] sets forth the terms and
conditions for the acquisition . . . of the pizzeria busi-
ness known as Sally’s . . . together with the real prop-
erty located at 237 and 245 Wooster Street . . . .’’
Twelve pages in length, that proposed agreement states
that it ‘‘contains all material terms and conditions of
the Purchase Transaction and is intended to obligate
Seller and Purchaser to consummate the transactions
contemplated hereby. It is, accordingly, the intent of the
parties hereto that this agreement constitute a legally
binding and enforceable agreement.’’ The proposed
agreement also contains a merger clause, as § 9 (c)
states that ‘‘[t]his agreement constitutes the entire
agreement among the parties with respect to the mat-
ters covered hereby and supersedes all prior
agreements, understandings, offers, and negotiations
(oral or written). This agreement may be amended or
modified only by a subsequent agreement in writing
signed by each of the parties.’’ The proposed agreement
concludes by prescribing an exclusive method of accep-
tance, stating: ‘‘If you are in agreement with the terms
of this agreement, please so indicate by countersigning
this letter in the appropriate space below, whereupon
this agreement shall become a binding agreement
among the signatories hereto.’’ None of the defendants
signed that agreement.
At approximately 5:30 p.m. on the evening of April
14, 2014, Lynch e-mailed the bidding parties and dis-
closed the amounts of two new bids.4 He further stated
that ‘‘[w]e plan to meet with the [defendants] to go over
the new bids and negotiate the terms and conditions
of the purchase agreement.’’ After learning that the orig-
inal entity was the high bidder, Capasso emailed Lynch
on April 15, 2014, stating in relevant part: ‘‘Please let
us know if you need to meet with us to go over the
terms of our proposal. Look forward to working with
you.’’ The following day, Knight e-mailed Lynch. Noting
that ‘‘[f]rom your e-mail it appears we have the highest
offer,’’ Knight inquired as to the ‘‘next step’’ in the pro-
cess.5 On April 17, 2014, Lynch replied that ‘‘Greenberg
and I need to review your contract with our clients and
make a list of issues that need to be worked out.’’
On April 21, 2014, Capasso again e-mailed Lynch,
stating that he was ‘‘following up to see if any terms
within our bid need to be worked through.’’6 Capasso
further stated that ‘‘[d]uring our [March 27, 2014] meet-
ing with the [defendants] the parameters of the sale
were brought up and we were informed that the highest
price at the last bid would prevail and that the terms
of the sale would be worked out. It has been brought
to my attention that the condition of expansion and the
pizza [oven] are not acceptable to the [defendants].
Please strike this term from our proposal. Please let us
know if there are any other terms within our proposal
that are not acceptable to the [defendants] and we will
work out those terms as well’’ Lynch subsequently
informed Capasso that he needed to meet with his cli-
ents ‘‘to go over the contract and see what issues they
have. We will then prepare a joint response with
[Greenberg] and his client and will send the joint
response to you for your review and comment.’’
On May 9, 2014, Lynch sent an e-mail to the law firm,
which stated simply: ‘‘Here are the comments of the
[defendants] to the latest Al Dente proposal.’’ Attached
to that e-mail was a one page document containing
nine comments regarding the April 14, 2014 agreement
(comment sheet).7 In an e-mail sent to the law firm
later that day, Capasso stated that ‘‘[o]ur group will be
meeting to discuss the comments this weekend.’’8
On May 14, 2014, Capasso sent Lynch a two sentence
letter that reads: ‘‘Enclosed, please find our signed
counter offer with our deposit check for Sally’s. Please
get back to us with a closing date.’’9 Appended to that
letter were two documents. The first was a cashier’s
check in the amount of $333,000 payable to ‘‘Robert W.
Lynch Trustee’’ and ‘‘Lawrence J. Greenberg Trustee.’’
The second was a modified version of the comment
sheet, to which the following had been added: ‘‘Adden-
dum To Contract Signed 4/14/2014. The foregoing nine
(9) terms submitted by the Seller are hereby confirmed
to be additional to the Contract signed 4/14/2014 and
are made a part thereof’’ (addendum sheet).10 Capasso
signed that document, as did a notary public and two
‘‘witnesses’’ thereto.11 Notably, that document was not
signed by any of the defendants.
As Robert G. Consiglio swore in his affidavit, the
defendants instructed Lynch ‘‘to return the unsolicited
‘deposit check.’ ’’ By letter dated May 20, 2014, and
addressed to Attorneys Samuel M. Hurwitz and Jennifer
Deakin at the law firm, Lynch stated: ‘‘Enclosed please
find the unsolicited cashier’s check which was delivered
to our office last week.’’ Later that day, Deakin emailed
Lynch and Greenberg to inform them that ‘‘[o]ur client
was troubled to learn that your clients do not believe
they have a binding agreement with [the original entity]
based on the bid procedures established by their coun-
sel. [The original entity] believes it has a binding
agreement with your clients as a result of the bid proce-
dures and related events and remains ready, willing and
able to complete the transactions on the basis of that
agreement. Please advise on a closing date.’’ Lynch
replied approximately one hour later, stating that ‘‘[w]e
don’t have a binding agreement with any potential pur-
chaser at this time nor has there been any decision as
to who the purchaser will be. The [original entity’s] bid
is still being considered but no decision has been made.’’
Seven weeks later, Deakin sent a letter dated July 8,
2014, to Lynch and Greenberg, in which she communi-
cated the original entity’s concern that ‘‘your clients are
continuing to solicit and/or consider bids to purchase
Sally’s . . . .’’12 Deakin stated that the original entity
‘‘won the bid to purchase Sally’s pursuant to such sealed
bid procedures, and, further, has a binding agreement
with your clients to purchase Sally’s.’’ Deakin thus indi-
cated that the original entity ‘‘remains ready, willing
and able to consummate the closing of the purchase
and sale of Sally’s under the terms and conditions of
its agreement with your clients that it has negotiated
in good faith.’’ If the defendants failed to proceed with
the transaction, Deakin cautioned, the original entity
was ‘‘prepared to take all measures, including legal
action . . . .’’ Nevertheless, a majority of the members
of the original entity ultimately voted against taking any
legal action against the defendants, and so informed
Capasso and his brother Vincent.
On July 19, 2014, a limited liability company operating
agreement was executed for the entity known as Al
Dente, LLC. That agreement was signed by Capasso
and his brother Vincent, and described the two as sole
and equal interest members thereof.13 Capasso there-
after retained the counsel of Attorney Laurence V. Par-
noff, who prepared a complaint on behalf of the
plaintiffs, which was served on the defendants on
August 20, 2014. That complaint contained three counts.
The first sounded in breach of contract—specifically
the breach of a purchase agreement stemming from the
comment sheet, which the plaintiffs characterized as
a ‘‘counteroffer,’’ acceptance of which allegedly was
memorialized in the addendum sheet. The second count
alleged breach of the bidding agreement.14 The third
count, derivative of the second, alleged a violation of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq.15
In their respective answers, the defendants denied
the substance of those allegations. Following a period
of time in which the parties conducted extensive discov-
ery,16 the defendants moved for summary judgment in
February, 2005, claiming, inter alia, that ‘‘[t]here is no
dispute of fact that the parties never entered into a
contract because there was no manifestation of mutual
assent; further, submitting the highest bid does not
establish an enforceable contract under Connecticut
law . . . .’’ The plaintiffs, in turn, filed a memorandum
of law in opposition. The court heard argument on the
motion for summary judgment on June 16, 2015. By
memorandum of decision dated August 10, 2015, the
court concluded that no genuine issue of material fact
existed as to whether the defendants entered into a
purchase agreement with the plaintiffs. It further deter-
mined that no such issue existed with respect to the
alleged breach of the bidding agreement.17 Accordingly,
the court rendered summary judgment in favor of the
defendants on all counts, and this appeal followed.
Before considering the particular claims advanced by
the plaintiffs in this appeal, we note the well-established
standard of review governing a court’s grant of sum-
mary judgment. ‘‘The fundamental purpose of summary
judgment is preventing unnecessary trials.’’ Stuart v.
Freiberg, 316 Conn. 809, 822, 116 A.3d 1195 (2015).
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case.’’ (Internal quotation marks omitted.) Id., 820–21.
‘‘Summary judgment . . . is properly granted if the
defendant in its motion raises at least one legally suffi-
cient defense that would bar the plaintiff’s claim and
involves no triable issue of fact.’’ (Internal quotation
marks omitted.) Serrano v. Burns, 248 Conn. 419, 424,
727 A.2d 1276 (1999). Our review of a grant of summary
judgment is plenary. Stuart v. Freiberg, supra, 821.
I
The plaintiffs’ primary contention is that a genuine
issue of material fact exists as to whether the defen-
dants breached the bidding agreement by ‘‘unilaterally’’
withdrawing from negotiations. We disagree.
Construed in a light most favorable to the plaintiffs,
the affidavits and other proof presented indicate that
the parties reached an agreement on March 27, 2014,
regarding the terms of the bidding process. The plain-
tiffs maintain, and the defendants concede, that the
defendants at that time agreed that they would ‘‘com-
mence negotiations for sale with the highest bidder’’
following the submission of final bids on April 14, 2014.
As high bidder, the plaintiffs contend that they ‘‘had
the right and the [d]efendants had the duty to have
negotiations of the terms’’ of the April 14, 2014 pro-
posed agreement.
It is undisputed that such negotiations transpired
between the parties, as the plaintiffs acknowledge in
their appellate brief.18 Following the conclusion of the
bidding period, the defendants notified the original
entity that they were reviewing its proposal to ‘‘negoti-
ate the terms and conditions of the purchase
agreement.’’ Approximately one week later, Capasso
contacted Lynch and offered to remove certain details
from the pending proposal, stating: ‘‘It has been brought
to my attention that the condition of expansion and the
pizza [oven] are not acceptable to the [defendants].
Please strike this term from our proposal. Please let us
know if there are any other terms within our proposal
that are not acceptable to the [defendants] and we will
work out those terms as well.’’ In response, Lynch
advised Capasso that the defendants would review that
proposal and then ‘‘send [a] response to you for your
review and comment.’’ The defendants thereafter circu-
lated the comment sheet to the plaintiffs, at which time
Capasso prepared and signed the addendum sheet,
which he mailed to the defendants’ representatives
along with a deposit check. On May 20, 2014, Lynch
returned that check to the law firm. Negotiations
between the parties at that point ceased.19
On appeal, the plaintiffs argue that the defendants
breached the terms of the bidding agreement by ‘‘unilat-
erally abandoning’’ those negotiations. No such allega-
tions, however, are contained in the plaintiffs’
complaint, nor were such allegations advanced in the
proceeding before the trial court. Construed in the light
most favorable to the plaintiffs, the complaint and
related documentation establishes, at best, a contrac-
tual duty on the part of the defendants to engage in
preliminary negotiations over the terms of a purchase
agreement. Absent from the complaint are any allega-
tions that the defendants acted in bad faith or that the
bidding agreement required negotiations of a certain
character or duration. See, e.g., Grenier v. Commis-
sioner of Transportation, 306 Conn. 523, 537, 51 A.3d
367 (2012) (pleadings must provide sufficient notice of
facts claimed and issues to be tried and cannot surprise
or prejudice opposing party); A-Right Plumbing,
Sewer & Water Main Co., LLC v. Aquarion Operating
Services Co., 282 Conn. 612, 613, 922 A.2d 1084 (2007)
(summary judgment rendered when plaintiff ‘‘never
raised’’ specific claim in its complaint). The materials
that accompanied the plaintiffs’ opposition to the
motion for summary judgment likewise do not contain
any evidence to substantiate such allegations. See Feli-
ciano v. Autozone, Inc., 316 Conn. 65, 72–73, 111 A.3d
453 (2015) (party opposing motion for summary judg-
ment must provide evidentiary foundation to demon-
strate existence of genuine issue of material fact).
The record before us indicates that the defendants
agreed to engage in negotiations following Capasso’s
submission of the highest bid. The record further indi-
cates that those negotiations transpired. We, therefore,
agree with the trial court that no genuine issue of mate-
rial fact exists as to whether the defendants breached
the bidding agreement with the plaintiffs by concluding
negotiations on May 20, 2014. For that reason, the court
properly rendered summary judgment on the second
count of the complaint, as well as the derivative
CUTPA claim.
II
We next consider whether a genuine issue of material
fact exists as to whether the defendants entered into
a binding purchase agreement with the plaintiffs, as
alleged in the first count of the complaint. That count
alleges in relevant part that ‘‘[b]y May 14, 2014, the
[p]laintiffs and [d]efendants entered into an agreement,
by the terms of which the [p]laintiffs agreed to buy and
[the defendants] agreed to sell [Sally’s] for a single cash
payment . . . .’’ That agreement, the complaint alleges,
sprung from the ‘‘[p]laintiffs’ acceptance of the [d]efen-
dants’ counteroffer to the agreement . . . .’’ We con-
clude, from the pleadings, affidavits, and other proof
submitted, that a binding agreement to purchase Sally’s
was never reached by the parties.
At the outset, we note what is not at issue. Under
Connecticut law, ‘‘[a] bid is a binding offer to make a
contract. . . . A bid . . . submitted in response to an
invitation for bids is only an offer which, until accepted
. . . does not give rise to a contract between the par-
ties.’’ (Citation omitted.) John J. Brennan Construction
Corp., Inc. v. Shelton, 187 Conn. 695, 702, 448 A.2d 180,
184 (1982). On April 14, 2014, the plaintiffs submitted
a final bid to purchase Sally’s and the real property on
which it is situated, which was accompanied by a writ-
ten proposal delineating the terms and conditions
thereof.
By its plain language, that proposed agreement
required the signatures of the defendants to establish
‘‘a binding agreement among the signatories hereto.’’
The record reflects that none of the defendants ever
signed that agreement. It further is undisputed that,
upon receipt of the deposit check and addendum sheet
prepared and signed by Capasso, the defendants did
not sign the addendum sheet and directed their counsel
to return that check. Accordingly, there is no claim in
this case that the defendants entered into a purchase
agreement by accepting either the April 14, 2014 pro-
posed agreement or the May 14, 2014 addendum sheet.
Rather, the plaintiffs submit that a genuine issue of
material fact exists as to whether the defendants, in
circulating the comment sheet, intended to surrender
their power of acceptance and bind themselves to a
purchase agreement with the plaintiffs. In the plaintiffs’
view, the comment sheet, when ‘‘read within [context
of] the email and document chain,’’ constituted a count-
eroffer that incorporated the terms of the April 14, 2014
proposed agreement in all material respects, as aug-
mented by the nine specific comments detailed in the
comment sheet.20 We disagree.
The April 14, 2014 proposed agreement, the terms of
which the defendants allegedly incorporated into that
counteroffer, required the signatures of all interested
parties. That requirement certainly was understandable,
as the agreement, because it involved the conveyance
of real property, implicated the statute of frauds and,
thus, required it to be signed.21 The comment sheet,
however, was not signed by any of the defendants in
this case.
Beyond that glaring, and perhaps fatal, deficiency,
the record reveals no basis on which the finder of fact
objectively could conclude that the defendants intended
the comment sheet to constitute a counteroffer that
terminated their power of acceptance. See Cavallo v.
Lewis, 1 Conn. App. 519, 521, 473 A.2d 338 (1984)
(counteroffer terminates offeree’s power of accep-
tance). As the Restatement (Second) of Contracts
explains, ‘‘[a] mere inquiry regarding the possibility of
different terms . . . or a comment upon the terms of
the offer, is ordinarily not a counter-offer. Such
responses to an offer may be too tentative or indefinite
to be offers of any kind.’’ 1 Restatement (Second), Con-
tracts § 39, comment (b), p. 106 (1981); accord 1 E.
Farnsworth, Contracts (3d Ed. 2004) § 3.20, pp. 314–15
(‘‘mere request for modification . . . does not ordi-
narily’’ constitute counteroffer). Several of the concerns
raised in the comment sheet are highly tentative and
indefinite in nature. For example, the third comment
states that ‘‘[o]ur accountants suggest allocating the
purchase price’’ in a certain manner, while the sixth
comment vaguely states that ‘‘[w]e need an exception to
the confidentiality provision for attorneys, accountants
and advisors.’’ Similarly, the eighth comment states that
‘‘Ruth Consiglio would like a license’’ to access a grape-
vine on the property being conveyed. Such generalized
concerns do not resemble the sort of definitive contrac-
tual terminology commonplace in million dollar pur-
chase agreements.
Equally significant, the defendants steadfastly char-
acterized the concerns raised in the comment sheet as
‘‘issues’’ and ‘‘comments’’ regarding the plaintiffs’ April
14, 2014 proposed agreement. For example, in an April
21, 2014 email, Lynch advised Capasso that the defen-
dants ‘‘will give you a complete list of comments for
you to review with your group after we have completed
our review of the contract.’’ In a similar email to Knight
on April 17, 2014, Lynch stated that he needed ‘‘to review
your contract with [the defendants] and make a list of
issues that need to be worked out.’’ In a final communi-
cation that preceded the circulation of the comment
sheet, Lynch informed Capasso that he and Greenberg
were preparing ‘‘a joint response’’ that they ‘‘will send to
you for your review and comment.’’ (Emphasis added.)
Those communications give context to the comment
sheet, a stark one page document bereft of any letter-
head, date, signatures, or identification of parties that
merely enumerates nine concerns with the plaintiffs’
proposed agreement. In addition, we note that the com-
ment sheet is titled ‘‘Comments to Al Dente Contract’’
and contains no representation that it was intended
either to terminate the defendants’ power of acceptance
or to constitute a counteroffer that bound the defen-
dants thereto. See, e.g., Great Lakes Communication
Corp. v. AT&T Corp., 124 F. Supp. 3d 824, 849 (N.D.
Iowa 2015) (‘‘a mere ‘inquiry’ about different or better
terms does not necessarily amount to a counteroffer’’);
Hubble v. O’Connor, 291 Ill. App. 3d 974, 980, 684 N.E.2d
816 (1997) (‘‘simply because a communication dis-
cusses the possibility of modification does not necessar-
ily mean that the communication is a demand for
modification’’); LD III, LLC v. BBRD, LC, 221 P.3d 867,
873 (Utah App. 2009) (‘‘[t]he expression of . . . a
desire [to possibly vary certain terms in a contract]
does not rise to the level of a counteroffer’’). Indeed, the
record plainly indicates that the defendants anticipated
further comment from the plaintiffs following the circu-
lation of the comment sheet, as Lynch informed
Capasso on April 23, 2014.
‘‘ ‘[R]equests’ and ‘suggestions’ do not . . . consti-
tute counteroffers.’’ 1 A. Corbin, Contracts (Rev. Ed.
1993) § 3.39, p. 518. This is so because, in such instances,
‘‘there is no rejection of the offer.’’ Id.; see also Jaybe
Construction Co. v. Beco, Inc., 3 Conn. Cir. Ct. 406, 411,
216 A.2d 208 (1965) (‘‘[a] mere inquiry as to whether
one proposing a contract will alter or modify its terms
does not amount to a rejection’’); Johnson v. Federal
Union Surety Co., 187 Mich. 454, 466, 153 N.W. 788
(1915) (‘‘the mere inquiry as to the terms of the proposal,
or a request to modify or change the offer, does not
have the effect of rejecting the offer, and, if the offer
has not been revoked, a party may accept it, although
he previously asked the proposer to modify it’’).
Although it articulates various issues that the defen-
dants had with the April 14, 2014 proposed agreement,
the comment sheet does not contain any rejection—
explicit or implicit—of that proposal. Moreover, when
read in context of the communications between the
parties, it is apparent that the defendants did not so
intend. The defendants, through their counsel, repeat-
edly advised members of the original entity that they
would be making ‘‘comments’’ on the proposed
agreement. Prior to circulating the comment sheet, the
defendants informed Capasso that they anticipated his
‘‘review and comment’’ thereon. Likewise, in his May
20, 2014 letter to the law firm on behalf of the defen-
dants, Lynch indicated that ‘‘[t]he Al Dente bid is still
being considered but no decision has been made.’’
A counteroffer serves to terminate an offeree’s power
of acceptance. Cavallo v. Lewis, supra, 1 Conn. App.
521; 1 Restatement (Second), supra, § 39 (2). The issue,
then, is whether a triable issue of material fact exists as
to whether the defendants, in circulating the comment
sheet, so intended.
In his affidavit, Capasso averred that he ‘‘received
the [comment sheet] as the [defendants’] counter offer
as [the defendants] intended them to be.’’ That percep-
tion, however, has little bearing on the issue before us.
It is well established that ‘‘general averments will not
suffice to show a triable issue of fact.’’ Farrell v. Farrell,
182 Conn. 34, 39, 438 A.2d 415 (1980). Rather, an eviden-
tiary showing ‘‘is indispensable’’ to avoiding summary
judgment. Id.; see also White v. Mazda Motor of
America, Inc., 313 Conn. 610, 632, 99 A.3d 1079 (2014)
(‘‘the plaintiff must come forward with real evidence,
not mere assertions’’). As this court has observed, ‘‘[t]he
mere fact that the plaintiff believed [certain actions or
documents] to constitute a contract does not bind [the
defendant] without some evidence that it intended to
be bound to such a contract.’’ (Internal quotation marks
omitted.) Morrissey-Manter v. Saint Francis Hospi-
tal & Medical Center, 166 Conn. App. 510, 521, 142 A.3d
363, cert. denied, 323 Conn. 924, A.3d (2016).
In that same vein, we note that Connecticut sub-
scribes to what our Supreme Court has termed the
‘‘objective theory’’ of contracts. Connecticut Light &
Power Co. v. Proctor, 324 Conn. 245, 267, A.3d
(2016). Accordingly, the proper inquiry concerns not
how Capasso perceived the comment sheet, but rather
whether the defendants, through their words and acts,
manifested an objective assent to surrender their power
of acceptance and bind themselves to the terms of the
April 14, 2014 proposed agreement, as augmented by
the concerns articulated in that comment sheet. See
id., 267–68; accord 1 R. Lord, Williston on Contracts
(4th Ed. 2007) § 4:1, p. 325 (‘‘[i]n the formation of con-
tracts . . . subjective intent is immaterial, so that
mutual assent is to be judged only by overt acts and
words rather than by the . . . subjective or secret
intention of the parties’’). In light of the stark and infor-
mal nature of the comment sheet, its content, and the
context in which it arose, it cannot reasonably be
claimed that the comment sheet constituted a binding
counteroffer. All of the objective evidence submitted
in the present case indicates that the comment sheet
was a written expression of the defendants’ comments
‘‘upon the terms of the offer’’; 1 Restatement (Second),
supra, § 39, comment (b); and suggestions as to what
might make the plaintiffs’ proposal palatable to them.
Such comments and suggestions do not constitute a
counteroffer. 1 A. Corbin, supra, § 3.39.
In the end, it is important to recognize that ‘‘[t]o
constitute an offer and acceptance sufficient to create
an enforceable contract, each must be found to have
been based on an identical understanding by the par-
ties.’’ (Internal quotation marks omitted.) Saint Ber-
nard School of Montville, Inc. v. Bank of America, 312
Conn. 811, 830, 95 A.3d 1063 (2014). Although Capasso
claims to have understood the comment sheet to be a
counteroffer that terminated the defendants’ power of
acceptance, there simply is no objective evidence in
the record to indicate that the defendants shared that
understanding. Accordingly, we conclude, on the basis
of the pleadings, affidavits, and other proof submitted,
that no triable issue of fact exists as to whether the
defendants intended to so bind themselves when they
circulated the comment sheet to the plaintiffs. The trial
court, therefore, properly rendered summary judgment
on the first count of the complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We recognize that Al Dente, LLC, was not formally organized until months
later. It nevertheless remains that multiple offers to purchase Sally’s were
made by a to be formed entity bearing that nomenclature. For convenience,
we refer to that bidder as the original entity.
2
The record before us contains no further reference to ‘‘Giuseppe
DeLucia.’’ Rather, the parties, in various communications, affidavits, and
deposition testimony, refer to either ‘‘Alphonse DeLucia’’ or ‘‘Alphonse
DeLuca’’ as a participant in the original entity’s attempt to acquire Sally’s.
In his February 5, 2015 affidavit, for example, Marc Keslow averred in
relevant part: ‘‘In mid-2013, I was approached by Tara Knight. Tara informed
me that she had been investigating the possible purchase of [Sally’s] along
with an acquaintance of hers, Alphonse DeLuca. The two had learned that
the owners of Sally’s were quietly soliciting offers for purchase. Accordingly,
Alphonse DeLuca and Tara Knight were in the process of finding additional
members to be co-owners of an LLC that would bid on the purchase of
Sally’s . . . . In mid-late 2013, I, Kristen Keslow, Alphonse DeLuca, Tara
Knight, Carmine Capasso and an individual I understood to be Alphonse
DeLuca’s father held a meeting to discuss the formation of the new LLC.
Subsequently, I, along with Kristen Keslow, Alphonse DeLuca, Tara Knight,
Carmine Capasso and Carmine’s brother . . . agreed to be part of a new
LLC that would be called ‘Al Dente LLC.’ [We were to be the] members
and co-owners of Al Dente, LLC . . . . The six members, including myself,
subsequently entered into a retainer agreement dated November 26, 2013
with [the law firm] to form the LLC and to represent the LLC throughout any
negotiations concerning the potential purchase of Sally’s.’’ In his deposition
testimony, Capasso acknowledged that ‘‘Alphonse DeLucia’’ was his cousin
and ‘‘an investor’’ in Al Dente, LLC.
3
At all relevant times, Lynch served as counsel to all the defendants save
Ruth Consiglio, who was represented by Attorney Lawrence J. Greenberg.
4
Consistent with the terms of the bidding agreement, Lynch disclosed
only the amounts of the new bids; the identities of the bidding parties
remained confidential.
5
Knight copied Capasso and the other members of the original entity on
that correspondence.
6
Capasso copied the other members of the original entity on that corre-
spondence.
7
A redacted copy of the comment sheet accompanied the defendants’
motion for summary judgment. Titled ‘‘Comments To Al Dente Contract,’’
it states:
‘‘(1) The photos and memorabilia can be copied to the extent possible
but the originals are not included in the sale.
‘‘(2) The [redacted] dollar holdback is excessive. An escrow of [redacted]
for Robert and [redacted] for Richard is acceptable. Furthermore, if Robert
or Richard are prevented from assisting because of events beyond their
control, such as death or illness, their participation should be excused.
‘‘(3) Our accountants suggested allocating the purchase price as follows:
a. [Redacted] to equipment
b. [Redacted] to the parking lot (245 Wooster Street)
c. [Redacted] to 237 Wooster Street
d. [Redacted] to goodwill
‘‘(4) The business and the two parcels of real estate are sold ‘as is’ with
no contingencies.
‘‘(5) The buyers will not be allowed to work in the business until after
the closing.
‘‘(6) We need an exception to the confidentiality provision for attorneys,
accountants and advisors.
‘‘(7) The condition of the assets is ‘as is.’
‘‘(8) Ruth Consiglio would like a license to access, maintain and harvest
the grapes from the grapevine between the restaurant and the church.
‘‘(9) The parties would like to receive payment of [redacted] for each
additional location that is opened within the next 15 years.’’
8
Capasso copied other members of the original entity on that corre-
spondence.
9
On that same date, the law firm filed articles of organization for Al Dente,
LLC, with the secretary of state.
10
‘‘An addendum is defined in Black’s Law Dictionary as ‘[s]omething to
be added, esp. to a document; a supplement.’ ’’ Meribear Productions, Inc.
v. Frank, 165 Conn. App. 305, 315 n.11, 140 A.3d 993, cert. granted on other
grounds, 322 Conn. 903, 138 A.3d 288 (2016). In his deposition testimony,
Capasso confirmed that he ‘‘put the addendum’’ on the comment sheet.
11
In his deposition testimony, Capasso identified the two witnesses as
his mother and his administrative assistant.
12
The plaintiffs furnished no evidence of the solicitation of additional
bids in their opposition to the motions for summary judgment and have not
raised any claim related thereto in this appeal.
13
In his December 12, 2014 deposition testimony, Capasso stated that
Knight and other members of the original entity were not members of ‘‘the
LLC.’’ No party disputes that assertion. The membership of Al Dente, LLC,
was not formally established until July 19, 2014—more than three months
after the final bid was submitted to the defendants and almost eight months
after the original entity retained the law firm to, among other things, organize
Al Dente, LLC, and to prepare an operating agreement on its behalf.
14
We note that paragraph sixteen of the plaintiffs’ complaint alleges in
relevant part that ‘‘[i]t was specifically required that Al Dente would partici-
pate in further bidding conditioned on . . . the high bidder [being] the
purchaser.’’ The plaintiffs have expressly abandoned any claim that the
bidding agreement conferred on them a right to purchase, as they acknowl-
edged in their appellate briefs and at oral argument before this court. Rather,
their claim pertains to the defendants’ obligation to engage in negotiations
with the high bidder.
15
The plaintiffs do not raise any distinct issue with respect to the CUTPA
claim in this appeal.
16
The recitation of facts in the plaintiffs’ principal appellate brief con-
cludes by stating that ‘‘[s]ummary judgment was entered, although at the
time of the entry of summary judgment a [Practice Book §] 17-49 issue was
raised because discovery had not been concluded.’’ The brief contains no
further reference to that allegation, and the plaintiffs have neither raised
nor analyzed such a claim in this appeal. We therefore decline to further
consider that bald assertion. See Paoletta v. Anchor Reef Club at Branford,
LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5
A.3d 491 (2010).
17
In its memorandum of decision, the trial court also rejected the defen-
dants’ alternate contention that the plaintiffs lacked standing to maintain
this action. The propriety of that determination is not at issue in this appeal.
18
As the plaintiffs aver in their principal appellate brief: ‘‘After Capasso’s
highest bid, the [d]efendants met with their attorneys ‘to go over the contract
and see what issues they have,’ with [the April 14, 2014 proposed agreement].
Thereafter negotiations with the [d]efendants began with the [p]laintiffs’
submission of [that] agreement to the [d]efendants. Negotiations followed
with the defendants’ attorneys’ submission of [the comment sheet].’’ (Empha-
sis added.)
19
Citing to the affidavits of Robert G. Consiglio and Ruth F. Consiglio,
the plaintiffs argue in their appellate brief that the bidding agreement
required the defendants ‘‘to engage in negotiations—in the plural not singu-
lar—with the [p]laintiffs’’ and that they did not do so. (Emphasis in original.)
Even if we were to agree with this semantic distinction, the undisputed
evidence indicates that (1) the plaintiffs commenced negotiations by submit-
ting their April 14, 2014 proposed agreement; (2) it thereafter was—as
Capasso swore in his affidavit—‘‘brought to [Capasso’s] attention’’ that cer-
tain aspects of the proposal were ‘‘not acceptable’’ to the defendants; (3)
Capasso, in turn, contacted the defendants with direction to ‘‘[p]lease strike’’
those aspects from the proposal; (4) Lynch responded by informing Capasso
that he would be reviewing the proposal with the defendants; (5) following
that review, the defendants provided nine detailed comments on the pro-
posal; (6) Capasso responded by creating and signing the addendum sheet
and mailing it, along with a deposit check, to the defendants’ representatives
with the request that the defendants ‘‘get back to us with a closing date’’;
and (7) the defendants returned that check to the plaintiffs. Thus, there is
no genuine issue of material fact that negotiations between the parties
had occurred.
20
We reiterate that, in preparing the addendum sheet, Capasso titled that
document ‘‘Addendum to Contract signed 4/14/2014.’’ That document
describes the defendants’ nine comments as ‘‘additions to the contract signed
4/14/2014 and made a part thereof.’’
21
The alleged agreement that is the subject of this civil action involved
the conveyance of real property known as 237 and 245 Wooster Street in
New Haven. Pursuant to our statute of frauds, ‘‘[n]o civil action may be
maintained in the following cases unless the agreement, or a memorandum
of the agreement, is made in writing and signed by the party, or the agent
of the party, to be charged . . . upon any agreement for the sale of real
property or any interest in or concerning real property . . . .’’ General
Statutes § 52-550 (a) (4).