SMDV 1, LLC v. 459-461 Pacific Street, LLC

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SMDV 1, LLC v. 459-461 Pacific Street, LLC

SMDV 1, LLC v. 459-461 PACIFIC STREET, LLC
(AC 47415)
Elgo, Suarez and DiPentima, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment for the defendants on
its complaint alleging, inter alia, breach of contract related to the defendant
P Co.’s purported termination of a contract for the sale and purchase of
certain real property. The contract established a minimum purchase price
for the property, which was subject to an upward adjustment based on a
formula predicated, in part, on figures to be derived from the anticipated
purchase and development of adjoining parcels of land that, at the time the
contract was executed, were subject to a separate ground lease and purchase
agreement between two other entities. The ground lease and purchase agree-
ment was subsequently terminated, and P Co. then gave the plaintiff notice
of termination of the contract, claiming that the purchase price of the
property referenced in the contract was contingent on the consummation
of the ground lease. On appeal, the plaintiff claimed that the court improperly
considered parol evidence to ascertain the parties’ intentions in making its
determination that the contract was unenforceable. Held:

The trial court improperly used parol evidence to vary the terms of the
contract when it determined that the contract was rendered unenforceable
by the termination of the ground lease and purchase agreement, as the
contract unambiguously established a minimum purchase price for the prop-
erty, the plain language of the contract established that the closing on the
property under the contract was independent of a closing on the ground
lease and purchase, the contract included a merger clause, and the plaintiff
and P Co. were both sophisticated commercial parties that had been repre-
sented by counsel.

Argued February 20—officially released July 8, 2025

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where Frank Steinegger was cited in as a defendant;
thereafter, the named defendant filed a counterclaim;
subsequently, the case was tried to the court, Golger,
J.; judgment for the defendants on the complaint and
for the plaintiff on the counterclaim, from which the
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plaintiff appealed to this court. Reversed; judgment
directed in part; further proceedings.
Alexander J. Trembicki, for the appellant (plaintiff).
James H. Lee, with whom, on the brief, was Mark
F. Katz, for the appellees (defendants).
Opinion

DiPENTIMA, J. This appeal arises from an action
brought by the plaintiff, SMDV 1, LLC, against the defen-
dants, 459-461 Pacific Street, LLC (Pacific Street), and
Frank Steinegger, related to Pacific Street’s notice of
termination of a contract for the sale and purchase
of real property known as 459-461 Pacific Street in
Stamford (property). The dispositive issue in this appeal
is whether the trial court correctly determined that the
contract was rendered unenforceable by the termina-
tion of a separate ground lease and purchase agreement
between two different entities. After our review of the
language of the contract, we conclude that the trial
court’s determination cannot stand. Accordingly, we
reverse the judgment of the trial court rendered in favor
of the defendants following a court trial and remand
this case for further proceedings.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
June 30, 2020, the plaintiff and Pacific Street entered
into a written contract pursuant to which the plaintiff
was to purchase the property from Pacific Street (con-
tract). Article 2 of the contract established a $1.7 million
‘‘minimum purchase price’’ for the property that was
‘‘subject to adjustment.’’ The contract specified that the
$1.7 million minimum purchase price could be increased
by applying a mathematical formula that was predi-
cated, in part, upon figures to be derived from the antici-
pated purchase and development of adjoining parcels
of land that, at the time the contract was executed,
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SMDV 1, LLC v. 459-461 Pacific Street, LLC

were subject to a December 31, 2012 ‘‘Ground Lease and
Purchase Agreement’’ (ground lease) between Stamford
Manhattan Development Ventures, LLC (Stamford
Development or ground lessee), and several individual
property owners who referred to themselves collec-
tively as the Stamford Manhattan Transit Group (Stam-
ford Transit or ground lessor).1
The contract refers to the ground lease generally, and
it specifically identifies, by number, §§ 13.3 and 13.4
thereof.2 It also includes another mathematical formula
in article 2, by which an ‘‘[a]dditional [p]ayment’’ under
the contract, by the buyer to the seller, might be made.
That formula references, and is based upon, the pay-
ment of a ‘‘[l]ookback [a]djustment,’’ under the ground
lease, by the ground lease buyer to the ground lease
seller. See footnote 2 of this opinion.
The contract also specifies that the property ‘‘and
the properties which are the subject of the [g]round
[l]ease are adjacent to each other and shall be regarded
1
The parties to the contract and the parties to the ground lease are
different entities. We note, however, that John McClutchy, Jr., the manager
of the plaintiff who signed the contract on its behalf, was also the manager
of JHM Development Group of Connecticut, LLC, which was the manager
of Stamford Development. Likewise, the defendant Frank Steinegger, the
sole member of the defendant Pacific Street who signed the contract on its
behalf, was also one of the individual members who signed the ground lease
as a member of Stamford Transit. The record reflects that McClutchy and
Steinegger are both experienced real estate developers.
2
Section 13.3 of the ground lease sets forth calculations by which to
determine the ‘‘purchase price to be paid at the [c]losing’’ of the ground
lease which are based upon percentages of its ‘‘Appraised Project Value.’’
Section 13.3 also specifies that ‘‘in no event shall the [p]urchase [p]rice [for
the ground lessor’s estate be] less than [$14 million] . . . .’’
Section 13.4 of the ground lease establishes a ‘‘[l]ookback [a]djustment’’
to the ground lease purchase price that is based upon the ground lease’s
‘‘Total Project Value,’’ and it provides a method by which to determine
that value. The ‘‘[l]ookback [a]djustment’’ in the ground lease, when and if
implicated, could have resulted in either (1) an additional payment by the
ground lease buyer to the ground lease seller or (2) a refund from the ground
lease seller to the ground lease buyer.
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by each as two separate but contemporaneous clos-
ings.’’ It further provides, in article 3, that ‘‘[t]he transfer
of title to the [property] pursuant to this [contract] (the
‘Closing’) shall occur on a date designated by [the
plaintiff] upon not less than 10 days’ prior written notice
to [Pacific Street], which date shall not be later than
30 business days (or sooner at [the plaintiff’s] option)
following the date of the Closing under the [g]round
[l]ease (the ‘Closing Date’).’’ (Emphasis in original.)
The contract does not state, however, that a closing of
the ground lease was a condition precedent to the clos-
ing of the contract, nor did it explain what impact, if
any, a failure to close on the ground lease would have
on the viability of the contract and a closing thereunder.
The contract also includes a merger clause that
expressly states that ‘‘[t]his [contract] embodies and
constitutes the entire understanding between the par-
ties with respect to the transactions contemplated herein,
and all prior agreements, understandings, representa-
tions and statements, oral or written, are merged into
this [contract]. Neither this [contract] nor any provision
hereof may be waived, modified, amended, discharged
or terminated except by an instrument signed by the
party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such
instrument.’’ Moreover, the contract further states that
‘‘[e]ach and every provision of this [contract] has been
mutually negotiated, prepared and drafted, [and] each
party has been represented by legal counsel . . . .’’
On November 11, 2021, Stamford Transit terminated
the ground lease due to Stamford Development’s failure
to pay rent. Four days later, on November 15, 2021,
Pacific Street, through its attorney, Joseph Capalbo II,
notified the plaintiff that it was terminating the contract.
That written notice stated in relevant part:
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‘‘My client has recently been informed that the
[ground lease] between [Stamford Transit] and [Stam-
ford Development] has been terminated and is of no
further force and effect. This event has a profound
impact upon the [contract] between [Pacific Street] and
[the plaintiff] dated June 30, 2020 . . . .
‘‘In accordance with the terms of [a]rticle 2 of the
[contract], the purchase price for the property refer-
enced therein is predicated upon the sale of the property
from [Stamford Transit] to [Stamford Development] in
accordance with the [ground lease]. Specifically, the
ultimate purchase price for the [property] referenced
in the [contract] is based upon the ‘Lookback Adjust-
ment’ as the same is defined, established and quantified
in the [ground lease] (see Paragraph 2.1 (b) of the [con-
tract]). Further the [contract] requires that each trans-
action be contemporaneous.
‘‘For the foregoing reasons, [the plaintiff] will be
unable to fulfill its contractual obligations . . . . As
such, this shall constitute written notice of termination
of the [contract].’’ The plaintiff responded through
counsel, by stating that Pacific Street had no basis to
terminate the contract and that its attempt to do so
was not valid.
On December 17, 2021, the plaintiff commenced this
action against Pacific Street. The initial complaint con-
sisted of a single count that sought a declaration from
the court that the ‘‘contract between the plaintiff . . .
and . . . Pacific Street . . . dated June 30, 2020,
remains in full force and effect . . . .’’
On March 25, 2022, the plaintiff filed a motion to cite
in Frank Steinegger as an additional defendant; see
footnote 1 of this opinion; which the court, Clark, J.,
granted. The plaintiff thereafter revised its complaint.
In the revised complaint that sounded in three counts,
the plaintiff again sought a declaration as to the validity
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and enforceability of the contract and alleged slander
of title and tortious interference with business expec-
tancies against both defendants. Pacific Street filed a
counterclaim on January 30, 2023, which alleged slander
of title predicated on a lis pendens the plaintiff had
placed on the property.
This case was tried to the court, Golger, J., on August
8, 2023. The plaintiff presented testimony from one
witness, John McClutchy, Jr., and introduced exhibits
into evidence that included copies of the contract, the
ground lease and Pacific Street’s notice of termination.
The defendants presented testimony from four wit-
nesses, including Steinegger, and introduced exhibits
that were admitted into evidence. McClutchy and
Steinegger, both of whom testified to having extensive
experience in the construction business,3 offered con-
flicting testimony as to the intent behind the contract
and its purported termination.
McClutchy testified that the contract had not been
terminated because the plaintiff was ‘‘living by the terms
of the agreement. There was nothing in the agreement
that allowed anybody to unilaterally terminate it.’’
Steinegger testified that he would not have entered the
contract ‘‘if there was no second look provision . . . .’’
He explained that McClutchy had made several previous
offers to purchase the property that he had rejected
and that he accepted the $1.7 million offer only after
deciding to ‘‘throw some skin in the game, I’ll agree to
the million seven but the bargain is . . . that we have
the lookback provision as in the ground lease purchase
agreement mirrored in the contract for a million seven.’’
Moreover, as previously stated, Pacific Street’s notice
of termination asserted that ‘‘the ultimate purchase
3
McClutchy testified that he had ‘‘been in the construction real estate
business [his] entire life.’’ Steinegger testified that he had ‘‘been in the
construction business for forty-eight years . . . .’’
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price for the [property] referenced in the [contract] is
based upon the ‘Lookback Adjustment’ ’’ set forth in
the ground lease.
In its posttrial brief, the plaintiff argued that ‘‘[i]t is
clear from the unambiguous terms of the contract that
the termination of the ground lease affects the amount
of the consideration to be paid, not the existence of
the contract.’’ (Emphasis in original.) Moreover, the
plaintiff emphasized the fact that the contract did not
include a cross default provision ‘‘by which a default
under the ground lease could trigger a default under’’
the contract. Conversely, the defendants argued, in their
posttrial brief, that ‘‘[t]he plain language of [the con-
tract] clearly and expressly states that the $1.7 million
purchase price is contingent upon a lookback and
upward adjustment, based upon the sale price of the
real property under the [ground lease].’’ They main-
tained that ‘‘the closing of title under the contract . . .
could not occur until the ground lease sale was sched-
uled’’ and that ‘‘the consummation of the ground lease
was a ‘condition precedent’ ’’ to the sale of the property
to the plaintiff.
On January 23, 2024, the court issued a memorandum
of decision rendering judgment in favor of the defen-
dants on all counts of the complaint4 after expressly
finding ‘‘that the plaintiff’s contract is not enforceable
in the absence of a closing of the ground lease.’’5 The
4
The court also rendered judgment in favor of the plaintiff on Pacific
Street’s counterclaim. Pacific Street has not brought a cross appeal to chal-
lenge that judgment, and thus it has abandoned any claim it might have
raised in this regard. See, e.g., East Windsor v. East Windsor Housing, Ltd.,
LLC, 150 Conn. App. 268, 270 n.1, 92 A.3d 955 (2014) (‘‘[i]f an appellee
wishes to change the judgment in any way, the party must file a cross
appeal’’ (internal quotation marks omitted)).
5
The court further determined that ‘‘[c]ounts two and three of the plain-
tiff’s complaint are derivative of the first count of the plaintiff’s complaint
and cannot survive in the absence of a finding that an enforceable con-
tract exists.’’
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court did not, however, appear to agree with the defen-
dants that the contract language unambiguously sup-
ported this conclusion. Rather, after acknowledging
that ‘‘the parties disagree on what the plain meaning
of the contract is as it concerns the material terms of
the purchase price and closing date,’’ the court deemed
the contract ‘‘silent (or ambiguous) as to the rights of
the parties if no closing of the ground lease occurs’’
and found ‘‘sufficient ambiguities that can only be
explained by extrinsic evidence in the form [of] testi-
mony from the parties.’’ It found ‘‘that the failure of the
parties to define their rights under the [contract] in
the event that the ground lease did not close [was]
significant’’ and, despite previously asserting that ‘‘arti-
cle 2 [of the contract] makes the final price of [the
property] dependent on a lookback provision in the
ground lease,’’ the court expressly credited ‘‘the testi-
mony of [Steinegger] that the [contract] was contingent
upon the closing of the ground lease because the look-
back provision of the ground lease determined the sales
price of [the property].’’ It further found that the con-
tract and the ground lease ‘‘were inextricably inter-
twined in this transaction, as demonstrated by the fact
that [Pacific Street] had already rejected offers to pur-
chase [the property] from the plaintiff for $2 million
and $3 million.’’
On February 5, 2024, the plaintiff filed a motion to
reargue or for the court to reconsider the court’s deci-
sion in which it argued that the court improperly consid-
ered extrinsic, or parol, evidence to reach its conclusion
because the contract was unambiguous and because it
included a merger clause. On February 20, 2024, the
court denied the motion to reargue or reconsider, and
this appeal followed. Additional facts and procedural
history will be set forth as necessary.
On appeal, the plaintiff raises a single issue—that the
court improperly considered parol evidence in conclud-
ing that the contract was unenforceable. In support of
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this claim, the plaintiff argues that the court improperly
considered parol evidence to ascertain the parties’
intentions because (1) the contract unambiguously
established a $1.7 million minimum purchase price for
the property that was binding and enforceable irrespec-
tive of whether there was a closing of the ground lease
and (2) the contract included a merger clause. As such,
the plaintiff maintains that it was improper for the court
to consider and credit parol evidence to vary the terms
of the contract.6
In response, the defendants first and primarily argue,
as an alternative ground of affirmance, that the contract
unambiguously established that the termination of the
ground lease rendered the contract unenforceable
because the purchase price for the property could not
be determined unless and until there was a closing on
the ground lease properties.7 They then, ‘‘for the sake
of argument,’’ assume that the court was correct in
finding ambiguity to argue that it properly used parol
evidence to resolve the ambiguity. We conclude that
the court improperly used parol evidence to vary the
terms of the contract, and we are not persuaded by the
defendants’ alternative ground to affirm.8
6
We note that ‘‘[t]he parol evidence rule does not of itself . . . forbid
the presentation of parol evidence, that is, evidence outside the four corners
of the contract concerning matters governed by an integrated contract, but
forbids only the use of such evidence to vary or contradict the terms of
such a contract.’’ (Internal quotation marks omitted.) Stamford Wrecking
Co. v. United Stone America, Inc., 99 Conn. App. 1, 9, 912 A.2d 1044, cert.
denied, 281 Conn. 917, 917 A.2d 999 (2007). There is no claim in this appeal
that parol evidence was improperly admitted at trial.
7
The defendants posit in their brief that ‘‘[t]his argument is both [their]
response to the plaintiff’s claim and the subject of [their] alternat[ive] ground
for affirmance.’’
8
The plaintiff did not challenge the propriety of the trial court’s factual
findings in its opening brief to this court. It solely focused, instead, on its
claim that the court should not have considered parol evidence at all.
Although the defendants claim in their brief to this court that the contract
unambiguously supports the judgment the court rendered in their favor,
they also argue that, if the contract was ambiguous, the court properly
resolved those ambiguities by relying on parol evidence. In doing so, how-
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We begin our discussion by setting forth the relevant
legal principles, including our standard of review. ‘‘[If]
a party asserts a claim that challenges the trial court’s
construction of a contract, we must first ascertain
whether the relevant language in the agreement is
ambiguous. . . . If a contract is unambiguous within
its four corners, intent of the parties is a question of
law requiring plenary review. . . . [If] the language of a
contract is ambiguous, the determination of the parties’
intent is a question of fact, and the trial court’s interpre-
tation is subject to reversal on appeal only if it is clearly
erroneous. . . . A contract is ambiguous if the intent
of the parties is not clear and certain from the language
of the contract itself. . . . Accordingly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms. . . .
‘‘[W]e accord the language employed in the contract
a rational construction based on its common, natural
ever, the defendants merely recite the court’s findings and point out that
‘‘[h]aving placed its entire wager on the proposition that it should prevail
as a matter of law, the plaintiff did not challenge the trial court’s fact-
finding’’ without explaining how that fact-finding is correct. See U.S. Bank
Trust, National Assn. v. Shuey, 232 Conn. App. 618, 620 n.2, A.3d
(2025) (‘‘We are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . Analysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly.’’ (Internal quotation marks omit-
ted.)).
In its reply brief to this court, the plaintiff maintains its claim that the trial
court should not have considered parol evidence to construe the contract
but also argues, in response to the defendants’ observation, that the factual
findings the court made upon doing so were clearly erroneous. Likewise,
at oral argument before this court, when questioned as to whether the
plaintiff was ‘‘challenging any facts found,’’ the plaintiff’s counsel responded
by stating that ‘‘if you get into the question of whether the parol evidence
should have been allowed or not . . . Judge Golger made a call [and] I
think he ignored some of the evidence that came out in the testimony from
my client as well as [Copalbo] . . . .’’ Because we conclude that the contract
is unambiguous and that the court should not have considered parol evidence
at all, we need not address the procedural and substantive propriety of the
parties’ claims regarding the nature of the court’s factual findings.
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and ordinary meaning and usage as applied to the sub-
ject matter of the contract. . . . [If] the language is
unambiguous, we must give the contract effect accord-
ing to its terms. . . . [If] the language is ambiguous,
however, we must construe those ambiguities against
the drafter. . . . Moreover, in construing contracts, we
give effect to all the language included therein, as the
law of contract interpretation . . . militates against
interpreting a contract in a way that renders a provision
superfluous. . . .
‘‘In ascertaining the intent of contracting parties, we
are also mindful that a court’s interpretation of a con-
tract must also be informed by whether the terms of
the contract are contained in a fully integrated writing.
This is important because [t]he parol evidence rule pro-
hibits the use of extrinsic evidence to vary or contradict
the terms of an integrated written contract. . . . The
parol evidence rule does not apply, however, if the
written contract is not completely integrated. . . .
‘‘An integrated contract is one that the parties have
reduced to written form and which represents the full
and final statement of the agreement between the par-
ties. . . . Accordingly, an integrated contract must be
interpreted solely according to the terms contained
therein. Whether a contract is deemed integrated often-
times will turn on whether a merger clause exists in
the contract. . . . The presence of a merger clause in
a written agreement establishes conclusive proof of the
parties’ intent to create a completely integrated contract
and, unless there was unequal bargaining power
between the parties, the use of extrinsic evidence in
construing the contract is prohibited. . . .
‘‘We long have held that when the parties have delib-
erately put their engagements into writing, in such
terms as import a legal obligation, without any uncer-
tainty as to the object or extent of such engagement,
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it is conclusively presumed, that the whole engagement
of the parties, and the extent and manner of their under-
standing, was reduced to writing. After this, to permit
oral testimony, or prior or contemporaneous conversa-
tions, or circumstances, or usages [etc.], in order to
learn what was intended, or to contradict what is writ-
ten, would be dangerous and unjust in the extreme.
. . . Although there are exceptions to this rule, we con-
tinue to adhere to the general principle that the unam-
biguous terms of a written contract containing a merger
clause may not be varied or contradicted by extrinsic
evidence. . . . Courts must always be mindful that par-
ties are entitled to the benefit of their bargain, and the
mere fact it turns out to have been a bad bargain for
one of the parties does not justify, through artful inter-
pretation, changing the clear meaning of the parties’
words.’’ (Emphasis in original; footnote omitted; inter-
nal quotation marks omitted.) Johnson v. Vita Built,
LLC, 217 Conn. App. 71, 84–86, 287 A.3d 197 (2022); see
also 2 Restatement (Second), Contracts § 204, comment
(e), p. 98 (1981) (‘‘[if] there is complete integration and
interpretation of the writing discloses a failure to agree
on an essential term, evidence of prior negotiations or
agreements is not admissible to supply the omitted
term’’).

Indeed, ‘‘[t]he court will not torture words to impart
ambiguity where ordinary meaning leaves no room for
ambiguity. . . . Moreover, the mere fact that the par-
ties advance different interpretations of the language
in question does not necessitate a conclusion that the
language is ambiguous. . . . Furthermore, a presump-
tion that the language used is definitive arises when,
as in the present case, the contract at issue is between
sophisticated parties and is commercial in nature.’’
(Citations omitted; internal quotation marks omitted.)
United Illuminating Co. v. Wisvest-Connecticut, LLC,
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14 ,0 0 Conn. App. 1
SMDV 1, LLC v. 459-461 Pacific Street, LLC

259 Conn. 665, 670, 791 A.2d 546 (2002). ‘‘[T]he determi-
nation as to whether contractual language is plain and
unambiguous is . . . a question of law subject to ple-
nary review.’’ Cruz v. Visual Perceptions, LLC, 311
Conn. 93, 101–102, 84 A.3d 828 (2014).
‘‘In Connecticut, the essential terms of a contract for
the sale of real property include the parties, a descrip-
tion of the subject of the sale, and the terms of payment,
including a basis for determining the total purchase
price . . . .’’ Bayer v. Showmotion, Inc., 292 Conn. 381,
412–13, 973 A.2d 1229 (2009). The parties here dispute
whether the contract unambiguously establishes an
enforceable purchase price for the property that can
be ascertained independently from the ground lease
and a closing thereon. The defendants argue that the
purchase price of the property cannot be calculated in
the absence of a purchase of, and closing on, the ground
lease properties and, thus, ‘‘without a closing under
the ground lease, there can be no closing under the
[contract].’’ The plaintiff argues that the contract unam-
biguously establishes the purchase price of the property
and that the termination of the ground lease simply
precluded the possibility of securing additional consid-
eration above that established amount.
The text of article 2, § 2.1, of the contract plainly
states that ‘‘[t]he purchase price . . . to be paid by [the
plaintiff] to [Pacific Street] for the [property] is ONE
MILLION SEVEN HUNDRED THOUSAND AND 00/
100 ($1,700,000.00) DOLLARS (the ‘Premises Mini-
mum Price’), subject to adjustment . . . .’’ (Emphasis
in original.) Section 2.1 (b) reiterates, after making ref-
erence to §§ 13.3 and 13.4 of the ground lease, that ‘‘the
purchase price of One Million Seven Hundred Thousand
($1,700,000.00) shall be the minimum purchase price’’
for the property, which is ‘‘subject to increase . . .
based upon the increase, if any, over Fourteen Million
($14,000,000.00) Dollars (the ‘Ground Lease Minimum
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Price’) in the initial ‘Purchase Price’ ’’ set forth in the
ground lease.9 (Emphasis in original.) Section 2.1 fur-
ther provides that the ‘‘minimum purchase price of
$1,700,000.00 shall be adjusted upward’’ based upon a
mathematical calculation that uses the actual purchase
price paid at the anticipated ground lease closing and
the ground lease minimum price to determine the
‘‘actual [p]urchase [p]rice’’ for the property.10
As such, the contract clearly, repeatedly and without
qualification establishes that the minimum purchase
price for the property is $1.7 million. Moreover,
although the contract provides that the $1.7 million
minimum purchase price might have been adjusted
upward, or increased, if there had been a closing of the
ground lease, such an adjustment was neither required
nor guaranteed. Indeed, the minimum purchase price
was only ‘‘subject to’’ being adjusted, and ‘‘the increase,
if any,’’ would have been dependent upon the ground
lease closing for more than the ground lease minimum
price of $14 million. (Emphasis added.) By the con-
tract’s plain terms, if the ground lease closed at the $14
million ground lease minimum price, there would be
no upward adjustment and, thus, no impact on the
established minimum purchase price for the plaintiff’s
purchase of the property.11
9
We note that, ‘‘[g]enerally, incorporation by reference of existing docu-
ments produces a single contract which includes the contents of the incorpo-
rated papers.’’ (Internal quotation marks omitted.) Morales v. PenTec, Inc.,
57 Conn. App. 419, 438, 749 A.2d 47 (2000).
10
The contract specifically provides: ‘‘The minimum purchase price of
[$1.7 million] shall be adjusted upward by creating a fraction, the numerator
of which shall be the actual [p]urchase [p]rice payable by the [g]round
[l]essee at the [c]losing under the [g]round [l]ease for the [g]round [l]ease
[p]remises, and the denominator of which shall be the [g]round [l]ease
[m]inimum [p]rice. This fraction shall then be multiplied against the [proper-
ty’s] [m]inimum [p]rice to determine the actual [p]urchase [p]rice.’’
11
Indeed, the application of the formula set forth in § 2.1 (b) of the contract
for the purchase price adjustment and restated in footnote 10 of this opinion
further bears this out. If the actual price paid under the ground lease was
$14 million, $14 million would be the fraction’s numerator and denominator
and the fraction would be equivalent to the whole number one. When the
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The defendants’ interpretation of the contract does
not follow from this clear and unambiguous language.
Instead, the defendants treat the ‘‘upwardly adjusted
purchase price’’ as a guarantee and argue that the $1.7
million minimum purchase price for the property can-
not be the ‘‘whole price . . . because the ‘upward
adjustment’ . . . is not trivial.’’ The defendants main-
tain that, ‘‘if there was no purchase of the ground lease
properties, the purchase price of this property [cannot]
be computed.’’12
Although we agree with the defendants that any
increase to the $1.7 million minimum purchase price
could not be computed without a closing of the ground
lease, the fact remains that the $1.7 million minimum
purchase price itself is clearly stated and it is definitive.
As we previously have stated, the terms of the contract
did not require or guarantee that there would be an
upward adjustment to the minimum purchase price at
all, even if the ground lease were to close. The contract
neither limited the applicability of the $1.7 million mini-
mum purchase price in any way nor stated that it was
only effective and enforceable if the ground lease
closed. We decline to tether the viability of that
expressly stated minimum purchase price to a closing
of the ground lease in the absence of any express lan-
guage in the contract that would support our doing so.
number one is then multiplied by the $1.7 million minimum purchase price
as the formula requires, the ‘‘actual [p]urchase [p]rice’’ for the property
would be $1.7 million.
12
We note that the defendants’ sole argument on appeal with respect to
the purchase price is that it is contingent on an upward adjustment that
could not be calculated unless there was a closing of the ground lease. The
defendants do not argue, as they did before the trial court, that the purchase
price is also predicated on the lookback adjustment in the ground lease,
which is the conclusion the court reached after it credited Steinegger’s
testimony. As such, we deem any such claim abandoned. See JPMorgan
Chase Bank, National Assn. v. Essaghof, 221 Conn. App. 475, 485, 302
A.3d 339 (‘‘claims of error not briefed are considered abandoned’’ (internal
quotation marks omitted)), cert. denied, 348 Conn. 923, 304 A.3d 445 (2023).
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‘‘[A] court cannot import into the agreement a different
provision nor can the construction of the agreement be
changed to vary the express limitations of its terms.’’
(Internal quotation marks omitted.) Konover v. Kola-
kowski, 186 Conn. App. 706, 718, 200 A.3d 1177 (2018),
cert. denied, 330 Conn. 970, 200 A.3d 1151 (2019).
Likewise, we do not agree with the defendants’ con-
tention that the closing date set forth in the contract ‘‘is
expressed by reference to the closing of title pursuant
to the ground lease’’ such that the termination of the
ground lease means that ‘‘there can be no closing under
the [contract].’’ In fact, the contract provides that ‘‘[t]he
transfer of title to the [property] pursuant to this [con-
tract] (the ‘Closing’) shall occur on a date designated by
[the plaintiff] upon not less than 10 days’ prior written
notice to [Pacific Street],’’ and then, in a separate clause
following a comma, ‘‘which date shall not be later than
[thirty] business days (or sooner at [the plaintiff’s]
option) following the date of the Closing under the
[g]round [l]ease (the ‘Closing Date’).’’ (Emphasis in
original.) Moreover, the contract refers to the closing
on the property and the closing on the ground lease
as ‘‘two separate but contemporaneous closings.’’ The
contract does not, however, state that the closing of
the contract is contingent or dependent upon a closing
of the ground lease. As such, the plain language of the
contract establishes that the closing on the property
under the contract is independent of a closing of the
ground lease, and that it can occur on a date designated
by the buyer, as long as the seller has been given proper
notice thereof. Moreover, it provides that, if there was
a closing of the ground lease that preceded a closing
under the contract, the closing of the property under
the contract could not be scheduled more than thirty
days afterward.
If the parties had agreed to make the closing of the
contract contingent upon the closing of the ground
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lease, the contract should have said so. It did not. ‘‘We
will not insert limitations into a contract when the par-
ties did not do so themselves. . . . This is especially so
when, as here, the agreement is between sophisticated
commercial parties represented by counsel. . . . In
these circumstances, we presume the parties used
definitive language to describe their agreement.’’ (Cita-
tions omitted.) Salce v. Wolczek, 314 Conn. 675, 690–91,
104 A.3d 694 (2014). ‘‘[W]e must discern the parties’
intent, in the first instance, from the language they used
and not the language we think they might have chosen
if confronted with this particular issue.’’ Id., 695. In
this case, the sophisticated commercial parties chose
language that unambiguously established a minimum
purchase price for the property that might well have
been impacted by, but was not contingent upon, the
closing of the ground lease.
Even so, the court found the contract was ‘‘silent (or
ambiguous) as to the rights of the parties if no closing of
the ground lease occur[red],’’ and it deemed the parties’
‘‘failure’’ to define their rights in this regard ‘‘signifi-
cant.’’ ‘‘[I]t is generally true [however] that silence alone
does not necessarily equate to ambiguity’’; Centerplan
Construction Co., LLC v. Hartford, 343 Conn. 368, 410,
274 A.3d 51 (2022); and, although the contract does not
expressly state that the contract is valid and enforceable
regardless of whether a closing of the ground lease
occurs, as we have explained previously, the plain lan-
guage of the contract makes this clear. See Johnson v.
Vita Built, LLC, supra, 217 Conn. App. 84–86.
Moreover, as the plaintiff points out, ‘‘the contract
does not contain a cross default provision by which a
default under the ground lease could trigger a default
under the [contract].’’ It does, however, include a
merger clause that expressly states that ‘‘[t]his [con-
tract] embodies and constitutes the entire understand-
ing between the parties with respect to the transactions
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contemplated herein, and all prior agreements, under-
standings, representations and statements, oral or writ-
ten, are merged into this [contract]. Neither this [con-
tract] nor any provision hereof may be waived,
modified, amended, discharged or terminated except
by an instrument signed by the party against whom the
enforcement of such waiver, modification, amendment,
discharge or termination is sought, and then only to the
extent set forth in such instrument.’’ This is significant
because, as this court has noted, ‘‘[i]n the case of a
fully integrated contract, usually manifested by its inclu-
sion of a merger clause, the parties are deemed to have
agreed that the terms of their written contract super-
sede all prior and contemporaneous communications
between them. Under such circumstances, a court may
not add additional terms to the contract.’’ Lux v. Envi-
ronmental Warranty, Inc., 59 Conn. App. 26, 33 n.8,
755 A.2d 936, cert. denied, 254 Conn. 949, 762 A.2d
902 (2000).
‘‘In sum, we view this case as an opportunity to reaf-
firm the wisdom of our [Supreme Court’s] earlier admo-
nition that [c]ourts do not unmake bargains unwisely
made. Absent other infirmities, bargains moved on cal-
culated considerations, and whether provident or
improvident, are entitled nevertheless to sanctions of
the law. . . . Although parties might prefer to have the
court decide the plain effect of their contract contrary
to the agreement, it is not within its power to make
a new and different agreement; contracts voluntarily
and fairly made should be held valid and enforced in
the courts. . . . The parties in this case entered into
[a] sophisticated and carefully crafted commercial [con-
tract] from positions of relative equality, without the
improper influence of fraud or duress. Even if the result
of the fair and logical enforcement of [the] unambiguous
[contract] seems unduly to burden one of the parties,
we decline to embark a voyage into uncharted waters
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in which untrammeled and unrestrained judicial revi-
sionism would depart significantly from an aspect of
contract law upon which contracting parties reasonably
can be assumed to have relied for many years.’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Trans-
mission System, L.P., 252 Conn. 479, 505–506, 746 A.2d
1277 (2000).
The judgment is reversed and the case is remanded
with direction to declare the contract valid and enforce-
able and to render judgment for the plaintiff with
respect to count one of the revised complaint and for
further proceedings with respect to counts two and
three of the revised complaint.
In this opinion the other judges concurred.