New Breed Logistics Inc. v. Ct Indy Nh Tt Llc

129 Conn.App. 563

19 A.3d 1275

NEW BREED LOGISTICS, INC.

v.CT INDY NH TT, LLC, et al.

No. 31178.

Appellate Court of Connecticut.

Submitted on Briefs March 11, 2011.Decided June 21, 2011.

Kenneth W. Ritt, Stamford, filed a brief for the appellant (plaintiff).Christopher J. Major filed a brief for the appellee (named defendant).DIPENTIMA, C.J., and LAVINE and ALVORD, Js.LAVINE, J.

The plaintiff, New Breed Logistics, Inc., appeals from the judgment of the trial court, Robinson, J., claiming that the court improperly dissolved a temporary injunction issued against the defendant CT INDY NH TT, LLC,¹ by failing to consider the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. We affirm the judgment of the trial court.²

The following facts, as alleged in the August, 2008, amended verified complaint (complaint) provide the context of this appeal. The plaintiff alleges that it is a third-party logistics service provider. On or about July 7, 2006, the plaintiff entered into a commercial lease (lease) with PREI North Haven Developers, LLC (the defendant's predecessor in interest) to rent a portion of the premises located at 300 Montowese Avenue in North Haven (property), on which three buildings are situated: the grocery building, the produce building and the transportation building. Initially, the plaintiff leased a portion of the grocery building. The plaintiff alleged that, in accord with its expectation that its business would grow and it eventually would use all of the buildings on the property, it negotiated lease provisions granting it the option to lease the entire grocery building by a date certain. The plaintiff also secured the option to lease the produce building provided that it exercised the option by a date certain. In addition, the lease gave the plaintiff the right of first offer to lease the entire grocery building and/or the produce building, if the plaintiff had not exercised its options.

The plaintiff further alleges that it exercised its option to lease the entire grocery building and thereafter a first amendment was added to the lease. The amendment granted the plaintiff the right to exercise options to lease the produce building and the transportation building and the right of first offer if it did not exercise its option on the transportation building. Subsequently, the plaintiff and the defendant entered into a second amendment to the lease. The plaintiff alleges that, during the negotiation of the second amendment to the lease, the defendant sought to alter the plaintiff's right of first offer with respect to the produce and transportation buildings. Because it expected to expand and eventually use the entire property, the plaintiff refused to relinquish its right of first offer with respect to either of the buildings.

The plaintiff also alleges, upon information and belief, that during 2008, the defendant entered into an agreement to lease the produce building to Bozzuto's, Inc. (Bozzuto's). By letter dated July 17, 2008, the plaintiff reminded the defendant that it had a right of first offer on the produce building and that the defendant had not complied with its obligations under the lease.³ On July 18, 2008, the defendant offered to lease the transportation building to the plaintiff, and on July 23, 2008, the plaintiff exercised its right to lease the entire transportation building. On July 24, 2008, the defendant sent the plaintiff a proposed third amendment to the lease, indicating that another party was interested in the transportation building. The defendant did not offer the plaintiff all of the parking spaces or exclusive use of the fueling system and truck wash associated with the transportation building. On July 28, 2008, the plaintiff executed the proposed third amendment to the lease. Upon information and belief, the plaintiff alleges that on July 30, 2008, the defendant and Bozzuto's executed a lease for the produce building and the right to access the utility room in the transportation building notwithstanding the fact that the defendant had leased the transportation building to the plaintiff. The complaint alleges breach of contract, breach of the implied covenant of good faith and fair dealing and violation of CUTPA against the defendant and seeks temporary and permanent injunctions, a declaratory judgment and specific performance against the defendant and Bozzuto's.

At some time prior to the events that gave rise to this action, when the property was still owned by the defendant's predecessor in interest, the plaintiff erected a fence near the grocery building. Although the defendant previously had not objected to the fence, in August, 2008, after the plaintiff had commenced this action, the defendant sent the plaintiff a notice of default for failing to remove the fence as required under section nine of the first amendment to the lease.⁴ The plaintiff removed the fence, but later claimed that removing the fence had an adverse effect on security. The plaintiff hired security guards, which it claims did not satisfy its security concerns. The plaintiff designed a new fence to be erected on the property and on October 9, 2008, asked the defendant for permission to install it. On October 24, 2008, the defendant responded by e-mail that based on a review of the lease, the plaintiff did not have a right to construct a fence and denied the request. The plaintiff claims that the defendant's refusal to grant permission to erect the fence is commercially unreasonable and unless permission was forthcoming, the plaintiff would avail itself of all its available remedies.

On or about December 9, 2008, the plaintiff began to erect the new fence,⁵ claiming that the new fence was critical to separate Bozzuto's space from the plaintiff's and to provide a perimeter around the grocery building. The defendant immediately sent the plaintiff a notice of default. On December 11, 2008, the plaintiff filed an application for an ex parte temporary injunction order, order to appear and show cause and temporary injunction (application). The application was presented to the court, Cosgrove, J., which ordered the parties to appear before it on December 17, 2008. After conferring with the parties, the court set the matter down for an evidentiary hearing on January 8, 2009, and entered a temporary injunction without a hearing and ordered the plaintiff to post a bond in the amount of $25,000. Judge Cosgrove found, in part, that “immediate and irreparable injury will result to [the] [p]laintiff prior to a hearing unless the requested injunctive relief is granted....”

Thereafter, the parties appeared before Judge Robinson on January 8 and March 30, 2009. On April 1, 2009, the defendant filed a motion to dissolve the temporary injunction and for costs and attorney's fees. Judge Robinson issued a memorandum of decision on May 27, 2009, dissolving the temporary injunction. The court noted the complexity of the underlying litigation but concluded that the issues related to the temporary injunction were relatively simple. The court also found that notwithstanding the plaintiff's argument that a CUTPA standard applies, “it is clear that the initial [o]rder for injunctive relief issued on the basis of a claim of irreparable harm. Had the plaintiff desired for the court to apply a different standard, it should have alerted the court and the parties to this in [its] initial filing. Instead, in the December, 2008 request for injunctive relief, the plaintiff asked for a finding of irreparable harm; and a finding that there was good cause for the issuance of the [o]rder. The hearing before this court further establishes that the CUTPA claim, while existing as a claim for relief in the instant case, is not the governing legal cause of action relating to the fence, its erection or its removal.”

The court also found that the plaintiff failed to establish that it will suffer irreparable harm if it is required to remove the fence or that it likely will prevail on the merits of its claim that it has a right to erect a fence. The court acknowledged that the timing of the defendant's request that the plaintiff remove the fence raises questions about its motive, but stated that an improper motive alone is insufficient to establish bad faith or to meet the plaintiff's burden of proof. Ultimately the court concluded that the plaintiff has remedies at law and in equity and that they are sufficient to compensate the plaintiff for losses illegally or improperly caused by the defendant. The court, therefore, dissolved the temporary injunction.⁶

On appeal the plaintiff claims that the court improperly dissolved the temporary injunction by (1) failing to apply the presumption of irreparable harm flowing from a CUTPA violation ⁷ and (2) finding that the plaintiff was not likely to succeed on the merits or that the equities tipped in its favor. We disagree with the plaintiff's claims.

The following standard of review applies to the review of a trial court's ruling on an injunction. “The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier.” (Internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty–Four, Inc., 230 Conn. 641, 648, 646 A.2d 133 (1994). “How a court balances the equities is discretionary but if, in balancing those equities, a trial court draws conclusions of law, our review is plenary.” State v. Blake, 108 Conn.App. 336, 356, 947 A.2d 998 ( Dupont, J., dissenting in part), aff'd, 289 Conn. 586, 958 A.2d 1236 (2008). “A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law.... A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of...