Heaven v. Timber Hill, LLC

900 A.2d 560, 96 Conn. App. 294, 2006 Conn. App. LEXIS 317
CourtConnecticut Appellate Court
DecidedJuly 4, 2006
DocketAC 26381
StatusPublished
Cited by13 cases

This text of 900 A.2d 560 (Heaven v. Timber Hill, LLC) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heaven v. Timber Hill, LLC, 900 A.2d 560, 96 Conn. App. 294, 2006 Conn. App. LEXIS 317 (Colo. Ct. App. 2006).

Opinion

Opinion

McLACHLAN, J.

The defendant Timber Hill, LLC,1 appeals from the judgment of the trial court, rendered after a trial to the court, awarding the plaintiffs, Marshall H. Heaven and M. H. Heaven Real Estate, LLC,2 the sum of $200,000, plus interest and attorney’s fees. The defendant claims that the court improperly (1) failed to apply the correct standard of proof with respect to its breach of fiduciary duty special defense and counterclaim, (2) interpreted the language of the contract at issue to exclude the building manager’s office as “rentable space” and (3) awarded offer of judgment interest pursuant to General Statutes § 52-192a. We disagree and affirm the judgment of the trial court.

The following evidence was presented to the court. The plaintiff is a licensed real estate broker with an office in Greenwich. The defendant is a broker-dealer engaged in the financial services business. Formerly located in New York, the defendant moved to Connecticut and leases commercial space in a complex owned [297]*297by Pickwick Plaza Associates (Pickwick Associates). Pickwick Associates is an Illinois partnership that owns three office buildings in Greenwich known as One Pickwick Plaza, Two Pickwick Plaza and Three Pickwick Plaza.

The plaintiff met Thomas Peterffy, the defendant’s principal, at a social gathering in 1997. After learning that the plaintiff was a commercial broker, Peterffy advised the plaintiff that he lived in Greenwich and wanted to relocate his business from Valhalla, New York, to Greenwich. Peterffy asked the plaintiff if he could assist him in locating a suitable space. The plaintiff contacted Albert E. Lawrence III, the general manager of Kennedy-Wilson Properties of Connecticut, Ltd. (Kennedy-Wilson). Kennedy-Wilson managed Pickwick Plaza and also was its listing agent. As the result of the plaintiffs efforts, the defendant subleased space on the second floor of Two Pickwick Plaza from one tenant3 (Aon lease) and entered into a direct lease with Pickwick Associates for additional space4 on that same floor (Pomboy lease). Both of those leases were due to expire at the end of June, 2001.

In June, 1999, which was at or about the time that the defendant signed the Pomboy lease, the plaintiff entered into a written commission agreement with Pickwick Associates (Pickwick agreement). The Pickwick agreement addressed the Pomboy lease and the plaintiffs commission for services provided in connection with that lease. The Pickwick agreement also provided, however, that in the event of renewals, extensions, continuations, leases of additional available rental space and the exercise of any options to obtain additional space involving the defendant, Pickwick Associates [298]*298would pay the plaintiff additional brokerage commissions. Payment of any additional commissions was conditioned expressly on the plaintiff’s producing a letter from the defendant authorizing the plaintiff to undertake negotiations on the defendant’s behalf. “Notwithstanding the foregoing, [the plaintiff ] shall not be paid nor shall he be entitled to any commission pursuant to this Section F, unless [the plaintiff] produces a written letter from [the defendant] authorizing [the plaintiff] to negotiate the renewal, extension or lease of additional space prior to the commencement of the term of the lease for such renewal, extension or additional space and no other broker representing [the defendant] deals with [Pickwick Associates] or [the defendant’s] Agent in connection with [the defendant’s] renewal, extension or lease of additional space.”

Shortly after the signing of the Pomboy lease, Peterffy contacted the plaintiff and requested his assistance in obtaining additional space at Pickwick Plaza. After several telephone calls, Peterffy indicated that he also wanted the plaintiff to assist him in the negotiations for the renewal of the Aon and Pomboy leases. Because the leases expired in June, 2001, Peterffy was concerned that his company would not have sufficient time to locate and move to another office building if the defendant could not remain at Pickwick Plaza. The plaintiff had several conversations with Lawrence about the defendant’s requests.

In early January, 2000, the plaintiff received a telephone call from Lawrence. During the course of the conversation, Lawrence indicated that he had gone to Peterffy’s office and asked him about the status of the negotiations. The plaintiff told Lawrence that he was interfering with the plaintiffs relationship with his Ghent. Shortly after that conversation, Lawrence asked the plaintiff for a letter from the defendant indicating that the plaintiff was the defendant’s broker in real [299]*299estate matters with Pickwick Associates. Lawrence stated that the letter was necessary for the payment of any commissions due from Pickwick Associates. Pursuant to that demand, the plaintiff telephoned Peterffy and requested a letter confirming the plaintiffs representation of the defendant in the negotiations. Peterffy refused to issue the letter and thereafter refused to communicate with the plaintiff. The plaintiff suspected that Pickwick Associates and the defendant were negotiating a renewal of the lease without the plaintiffs involvement in order to avoid paying the plaintiff his real estate commissions.

Direct negotiations between the defendant and Pickwick Associates were unsuccessful. In February, 2000, the plaintiff received a telephone call from Bradford L. Jacobowitz, associate general counsel for the defendant. Jacobowitz stated that the defendant wanted to retain the plaintiffs services again to renegotiate its lease with Pickwick Associates. In addition to the space the defendant was already occupying on the second floor of Two Pickwick Plaza, Jacobowitz indicated that the defendant wanted its new lease to include additional space on that floor. The plaintiff agreed to assist the defendant, and Jacobowitz drafted an agreement (Timber Hill agreement). The plaintiff signed the Timber TIill agreement on February 14, 2000. In that agreement, the defendant agreed to pay the plaintiff the sum of $200,0005 in the event the defendant signed a new lease with Pickwick Associates for “all of the rentable space of the second floor and related support space” of Two Pickwick Plaza. The agreement also contained a merger clause, indicating the parties’ intent to create a fully integrated contract.

At the time the Timber Hill agreement was executed, the defendant was leasing the former Aon space and [300]*300the former Pomboy space.6 Additional space on the second floor at Two Pickwick Plaza consisted of the space rented by Jack Trout (Trout space) and the space occupied by Kennedy-Wilson as the building manager’s office. After conferring with representatives of the defendant, the plaintiff sent various draft proposals to Pickwick Associates for its consideration. The Kennedy-Wilson space was included in all of those proposals, and some of the proposals included an option to rent space at One Pickwick Plaza if it became available.

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Cite This Page — Counsel Stack

Bluebook (online)
900 A.2d 560, 96 Conn. App. 294, 2006 Conn. App. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heaven-v-timber-hill-llc-connappct-2006.