Landmark Investment Group, LLC v. CALCO Construction & Development Co.

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LANDMARK INVESTMENT GROUP, LLC v. CALCO CONSTRUCTION &
DEVELOPMENT CO.—CONCURRENCE
ZARELLA, J., concurring in the judgment. I reach the
same result as the majority, albeit for different reasons.
In my view, the trial court correctly concluded that the
facts of this case did not support a finding of tortious
interference with contractual relations, but not for the
reasons offered by the defendants1 and relied on by
the trial court. I believe that the plaintiff, Landmark
Investment Group, LLC (Landmark), could not obtain
a judgment for tortious interference against the defen-
dants because any cause of action that Landmark could
have stemming from its contract with Chung Family
Realty Partnership, LLC (Chung), merged into the
decree of specific performance entered in the separate
breach of contract action between Landmark and
Chung. The decree terminated the contract between
Landmark and Chung, so Landmark could not obtain
a subsequent judgment on the basis of that contract.
Because, however, the defendants did not raise this
issue in the trial court—or on appeal, for that matter—
I am compelled to join in this court’s judgment.
The disputes over the continued existence of the
Landmark-Chung contract and the timing of the alleged
tortious interference all grow out of the same diseased
root: the specific performance decree. The defendants
argue that there can be no tortious interference because
the alleged acts of interference principally occurred
after Chung terminated its contract with Landmark, and
there was no contractual relationship to interfere with
after that point. Landmark responds that the contrac-
tual relationship did continue after termination, relying
principally on the trial court’s conclusion in the specific
performance action that Chung did not have the power
to terminate the contract, which led the court to order
specific performance by directing the parties to con-
tinue to perform the contract. In my view, the decree
of specific performance was improper.
I note preliminarily that the decree was poorly
framed. The court in the specific performance action
stated in its decision that ‘‘Landmark is entitled to pro-
ceed under the terms of the original contract or termi-
nate at any point, pursuant to the termination clause
of the contract.’’ 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). But a decree of specific
performance cannot be merely ‘‘a general decree that
in the future the delinquent party shall perform the acts
required of him by his contract.’’ (Internal quotation
marks omitted.) Fritsch v. Hilton Land & Cattle Co.,
245 Neb. 469, 477, 513 N.W.2d 534 (1994), quoting 71
Am. Jur. 2d 287, Specific Performance § 221 (1973); see
also Morgan v. United States Fidelity & Guaranty Co.,
191 So. 2d 851, 854 (Miss. 1966) (decree must specifi-
cally set out parties’ obligations without reference to
extrinsic documents, and court cannot issue general
decree commanding compliance with contract). In addi-
tion, the decree improperly left Landmark with a unilat-
eral right to terminate its rights and obligations there-
under. See, e.g., Thompson v. Burns, 15 Idaho 572, 603,
99 P. 111 (1908) (‘‘When a decree is based on a certain
contract and requires its specific performance, it must
require the performance of the contract by the plaintiff
as well as the defendant. . . . [T]he judgment must not
be so entered as to leave it optional with the plaintiff
whether he performs his part or not. . . . A decree for
specific performance is not, and is not intended to be,
an option that can be held for speculative purposes
over the title of valuable property.’’). If Landmark did
not want to specifically enforce the contract without
retaining its ability to terminate it at will, Landmark
should have pursued a remedy of damages instead of
seeking specific performance.
More fundamentally, however, specific performance
is not appropriate when it would require a continuing
and volatile relationship between the parties that the
court would be forced to oversee. See, e.g., Hill v.
Raffone, 103 Conn. App. 737, 744, 930 A.2d 788 (2007)
(upholding trial court’s decision not to enter specific
performance decree that would be ‘‘difficult to fashion
and a nightmare to enforce’’ [internal quotation marks
omitted]). Given the myriad conditions in the Land-
mark-Chung contract, specific performance should not
have been ordered, or the court should have set more
specific terms. The court’s failure to do so allowed
substantial complications to arise that ultimately pre-
vented its order from being carried out. By referring
the parties back to their contract for its continued per-
formance as if no breach occurred, the trial court gave
the erroneous impression that the contract was still in
effect and set the stage for further disputes and confu-
sion as to the parties’ rights and obligations.
Complications between the parties arose soon after
the court entered its decree and ultimately brought
the parties back to court. As the majority explains,
Landmark delayed completion of its permitting condi-
tions under the contract because of ongoing litigation.
Chung ran out of money and failed to pay taxes on the
property at issue to the town of Plainville, causing the
town to bring a foreclosure action. Meanwhile, the
defendants continued to act as if their separate contract
with Chung subsisted, despite the order of specific per-
formance, and the defendants later blocked Landmark
from preventing a foreclosure by the town. Landmark
ultimately lost the property after the foreclosure sale,
which prevented Chung from complying with the spe-
cific performance decree. Landmark then brought an
action against Chung, alleging breach of contract on
the basis of Chung’s failure to pay its property taxes. See
Landmark Investment Group, LLC v. Chung Family
Realty Partnership, LLC, 137 Conn. App. 359, 361, 48
A.3d 705, cert. denied, 307 Conn. 916, 54 A.3d 180 (2012).
Landmark and Chung recently settled that action by
entering into a stipulated judgment. See Landmark
Investment Group, LLC v. Chung Family Realty Part-
nership, LLC, Superior Court, judicial district of New
Britain, Docket No. HHB-CV-10-5015189-S (March 20,
2015) (order). All of this could have been avoided with
a proper decree or an award of damages in lieu of
specific performance.
Although the decree may have been improper, its
entry nevertheless merged the contract into the decree,
which effectively resolved any claims by Landmark
based on the contract and terminated the contractual
relationship between Landmark and Chung. Under the
doctrine of merger, when a court enters a decree of
specific performance, the parties’ contract merges into
the judgment, and the plaintiff cannot later bring an
action for breach of that contract. See, e.g., Thompson
v. Burns, supra, 15 Idaho 603; Zlotziver v. Zlotziver,
169 Pa. Super. 588, 592, 83 A.2d 429 (1951); see also 1
Restatement (Second), Judgments § 18, illustration (3),
pp. 153–54 (1982) (‘‘A and B enter into a contract for
the sale of land located in State X. B refuses to convey
the land. A brings an action for specific performance
in State X, and a judgment is entered in his favor order-
ing B to convey the land. A is precluded by the judgment
from maintaining a second action in State X to secure
money damages in lieu of specific performance, or to
obtain damages for delay in conveying the land in addi-
tion to the specific performance already adjudged.’’).
Any tortious interference claims a plaintiff may have
also merge into the specific performance decree
because the plaintiff has obtained relief for the breach
through specific performance. See, e.g., Douglas The-
ater Corp. v. Chicago Title & Trust Co., 288 Ill. App. 3d
880, 886–87, 681 N.E.2d 564 (party that obtains specific
performance for breach of contract cannot also recover
for tortious interference against third parties), appeal
denied, 174 Ill. 2d 558, 686 N.E.2d 1160 (1997). The
contractual relationship between the parties is termi-
nated, and any future remedy concerning the parties’
obligations under the decree must come from the
court’s contempt power or an action on the judgment.
See 1 Restatement (Second), supra, § 18, pp. 151–52;
see also Forcier v. Sunnydale Developers, LLC, 84
Conn. App. 858, 860–61, 856 A.2d 416 (2004) (contempt
action seeking to enforce specific performance decree).
Because of the doctrine of merger, Landmark could
not properly recover for tortious interference against
the defendants for interference with the Landmark-
Chung contract. Any tortious interference claim based
on acts of interference occurring before the decree of
specific performance was merged into the decree. And
Landmark cannot have a tortious interference claim for
acts of interference occurring after the decree because
there no longer was a contractual relationship between
the parties—the contract had merged into the decree,
which the parties could enforce through the powers of
the court.
Unfortunately, the trial court did not have the ability
to consider these issues because the defendants did not
raise them. The defendants instead argued that contrac-
tual relations between Landmark and Chung terminated
when Chung purported to terminate the contract, an
argument that cannot succeed because, as the majority
explains, Chung did not have the power to terminate
the contract. Because the issues I address in this con-
currence were not raised, the defendants cannot obtain
relief on this basis. I am therefore constrained to join
in the court’s judgment even though I believe the trial
court’s ultimate conclusion was correct.
Accordingly, I concur in the judgment.
1
The defendants to which I refer are the named defendant, CALCO Con-
struction & Development Company (CALCO), and the defendant John Sen-
ese, the president and owner of CALCO.