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DOCKET NO.: MMX-CV23-6037152-S SUPERIOR COURT
LEO D. CALDARELLA, individually and J.D. OF MDDLESEX
derivatively on behalf of FERRY LANDING,
LLC; CALMAR MARINE NORTH, LLC,
individually and derivatively on behalf of
FERRY LANDING, LLC,
Plaintiffs
v.
POTTS, ALLEN RIVES, ET AL. ALLEN
RIVES POTTS; VALERIE ANNE VOTTO;
142 FERRY ROAD (CT), LLC; FERRY
LANDING, LLC, as a derivative defendant;
THOMAS POTTS; 54 FERRY ROAD #2
(CT), LLC; and RRM2 (CT), LLC,
Defendants. MARCH 1, 2024
POST HEARING MEMORANDUM
FILED BY ALLEN RIVES POTTS, FERRY LANDING, LLC,
THOMAS POTTS AND 142 FERRY ROAD, LLC
IN OPPOSITION TO MOTION FOR PREJUDGMENT REMEDY
AND MOTION FOR TEMPORARY INJUNCTION
James J. Reardon, Jr.
Katherine A. Scanlon
Reardon Scanlon LLP
45 S. Main St., 3rd Flr.
West Hartford, CT 06107
860.955.9455
james.reardon@reardonscanlon.com
“I must clearly state that nothing can be done until we have
entered into a written agreement on the parcels that will make up
the Marina Village project. . . .” Leo Caldarella, 2/3/2023 at P-77
Defendants Allen Rives Potts (“Potts”), Ferry Landing, LLC (“Ferry Landing”), Thomas
Potts and 142 Ferry Road, LLC (“Defendants”) file this Post-Hearing Memorandum. There are no
written agreements, and Caldarella understood the need for written agreements. At hearing,
Caldarella abandoned any claim for damages and asserted this case was entirely about his vision
for “Marina Village”, a revery of an unapproved, “undetermined” development depicted only by
a brochure.
As set forth below, Caldarella has failed to show any element supporting either a prejudgment
remedy or a temporary injunction. There was no development plan, no funding, no order of
operations, no outline or budget concerning regulatory approval steps, and no cost basis shared
with Rives Potts.1 The Brochure tells the Court all it needs to know: it was prepared long before
Caldarella met Potts and was for “informal discussion.” The Brochure identifies a non-party entity,
Marine Enterprise LLC, not Caldarella, as the developer. Any and all relief concerning “Marina
Village” must be denied.
I. Plaintiff Is Not Entitled to a Prejudgment Remedy
A prejudgment remedy “is an extraordinary power granted in derogation of common right
and common law.” Gloria v. Manuel, No. 27 22 38, 1991 WL 84000, at *1 (Conn. Super. Ct. May
2, 1991) (Katz, J.). The court’s determination of whether the plaintiff has met his burden must be
based on assessment of the credibility of the witnesses and the legal issues. See Nash v. Weed &
Duryea Co., 236 Conn. 746, 749 (1996).2
1
See Cal. Tr. 11-02-2023 at 5 (Q. Mr. Caldarella, the Marina Village -- the plans that you put in the exhibit, the
brochure, we’ve called it the brochure, right? A. Yes. Q. That’s -- those are renderings; is that the right way to call
them? A. Yes, sir. Q. The specifications for the project as yet undetermined? A.The specifications were? Q.
Undetermined. A. Undetermined. Specific construction specifications were outlined in terms of general terms.” Id. at
58 (“Q. Had you had any discussion of cost with Mr. Potts in the October 2022 meeting? A Specific costs, no.”)
2
See Cal. Tr. 11/02/2023 at 20 (wherein Caldarella testified that he told Votto over the phone that Shaiken was going
to replace her for Ferry Landing and, most telling of Caldarella’s fabrication, he testified that Votto “didn’t say
anything” in response). As the Court will recall, Votto denied being informed by Caldarella of Shaiken’s purported
1
A. The Statute of Frauds Applies And Is Fatal to Plaintiff’s Claims
Conn. Gen. Stat. 52-550 states, inter alia, that no civil action may be maintained unless the
agreement is in writing and signed by the party to be charged, for any agreement for the sale of
real property or any interest in or concerning real property, or for any agreement that is not to be
performed within one year. C.G.S. § 52-550. Further, our courts will not enforce an oral agreement
to transfer an interest in real estate and have held that the owner has a legal “prerogative” to
“change[] her mind before the time [comes] to sign” a binding agreement for its
transfer. McNerney v. Blake, 15 Conn. Supp. 446 (1948).
Per Caldarella’s admission, there are no written agreements between Caldarella and any
defendant concerning “the parcels that will make up the Marina Village project. . . .” P-77.3 The
only writing as to Ferry Landing, LLC was the assignment of membership interest from Dort
Cameron to Potts, dated November 21, 2022. See Def. Ex. G. Moreover, contrary to Plaintiffs’
characterization of what was discussed at a meeting on November 18, 2022, Potts’s email (P-14),
on November 19, 2022 indicated his interest in acquiring the North and South Yards but no
agreement was confirmed -- indeed (1) there is no mention of an allocation of profits and losses,
or who would contribute what; (2) Potts asked Caldarella what he thought about Votto’s
discussion in an attached email, in which Votto advises Potts that he is free to take the assignment
in any manner he chooses, with or without Caldarella and (3) there is no response to Potts’s email
from Caldarella.
engagement for Ferry Landing, LLC. Votto Tr. 01-03-2024 at 55-56. Nor did Votto receive any of Caldarella’s self-
serving handwritten letters. Id. at 57-58. Votto testified that Shaiken informed her of his purported engagement on
or about January 11 or 12, 2023. Id. at 54.
3
Consistent with Caldarella’s focus on pursuing written agreements concerning the “parcels”, Plaintiffs, while
opposing Defendants’ Motion to Discharge Lis Pendens, also contended that “this action is intended to affect real
property”. In addition, according to the allegations of the Complaint, the parties allegedly agreed to set-up LLCs to
purchase and sell real estate. An agreement to purchase and sell real estate as opposed to an agreement to simply share
in the profits from real estate is subject to the statute of frauds. Yavarone v. Moroni, Superior Court, judicial district of
Middlesex at Middletown, Docket No. CV 04 0104753 (May 10, 2005, Aurigemma, J.); Sullivan v. Thorndike, Docket
No. CV010073106S, 2006 Conn. Super. LEXIS 43, at *2 (Super. Jan. 6, 2006).
2
The very last question from Plaintiffs’ counsel to Rives Potts was whether Potts had given
Caldarella his “word” to go forward with the Marina Village project – which Potts denied.
Plaintiffs’ counsel’s decision to attempt to confront Potts with such a question rather than with an
actual written agreement underscores the lack of probable cause supporting their claims for a
prejudgment remedy.
Caldarella’s testimony that Marina Village would not be possible in one year brings Plaintiffs’
claims within another section of the Statute of Frauds, barring his twelve counts in their entirety:
A.From beginning to end on the entire project, depending on the market conditions and
what the absorption rate was going to be on UNIS [units], it could be anywhere from 36
months to 60 months.
Q. So it would not be possible to do that in less than a year?
A. It would not be possible to build the entire projects in one year start to finish, no.
Cald. Tr. at 6-7 11-02-2023 (emph. add.). On this basis alone, under Conn. Gen. Stat. § 52-550 (a)
(5) (and regardless of the application of section 4), the Court must, as a matter of law, deny the
PJR and temporary injunction in their entirety.
B. Caldarella Could Not Become a Member of Ferry Landing LLC Without a Writing
Ferry Landing, LLC’s Operating Agreement (Def. Ex. OOO, at 11-12) also requires a writing
to transfer any membership interest. Id. at Art. 10. (Article X, requiring written consent). Per Conn.
Gen. Stat. § 34-243e, any person that becomes a member of a limited liability company is deemed
to have assented to it. When Cameron assigned his membership interest to Potts, and the
assignment provided that Potts had the authority to substitute the existing members of Ferry
Landing, LLC with “such names as Buyer chooses in lieu thereof”, this written assignment and
authority satisfied the Operating Agreement. See Defendants’ Exhibit G (Fully executed
Assignment Agreement dated November 21, 2022). Conversely, Caldarella has proffered no such
writing and has not been admitted to Ferry Landing. Caldarella, having never become a member,
could not assign any right to Calmar Marine North LLC (an entity created on or about January 27,
2023).
3
C. Shaiken’s Purported Engagement Letter Is Not Evidence of Any Transfer
Shaiken’s purported engagement letter does not contain any language transferring
membership. See P-52. See also Shaiken Tr. 11-07-2023 at 84 (Q.There’s no assignment of any
membership interest from one party to another in your engagement letter, correct?A. No. . .”).
Potts testified he does not recall signing the engagement agreement, nor was Potts copied as a
recipient of the letter. See P-52. Moreover, the letter contains no informed consent or disclosure
that Shaiken at the time represented Caldarella and his affiliated entities in state court litigation.
Conn. R. Prof’l Conduct 1.7. 4 Caldarella admitted those transfers were for past due money to the
RLMCA, not a retainer. Cald. Tr. 11-02-2023 at 2. Well after the date of the engagement letter,
Votto appeared for Ferry Landing, LLC at a court conference on January 3, 2023 while Shaiken
appeared for “Between the Bridges, LLC, Stack Marina LLC and Leo D. Caldarella”.5
D. Plaintiffs Produced No Evidence of An Agreement On Material Terms
In order to prevail on a breach of contract claim, a plaintiff must show, inter alia, mutual assent,
or a "meeting of the minds," on the material terms. See generally, Arthur Linton Corbin, Corbin
on Contracts, 9 (1952); Battistelli v. Corso, 30 Conn. Supp. 135, 140, 304 A.2d 676 (1973). The
overwhelming testimony reflected that there was no meeting of the minds here.
1. There Was No Agreement Reached Concerning Membership in Ferry Landing, LLC
Potts and Caldarella met for the first time on October 18, 2022. While there were instances of
lunches with Potts and Caldarella, not even an oral agreement (and one would not be binding) had
been reached with regard to combining the North and South Yard. The supposed November 18,
2022 “meeting” with Potts and Caldarella has no witnesses and there is no memorandum from
4
See also Shaiken Tr. (“Q. Did you ever tell Mr. Potts that your firm had represented Mr. Caldarella or its
predecessor had represented Mr. Caldarella or his entities for going on forty years? A. No.”). Nor did Ms. Votto
ever authorize Shaiken to speak her client. Votto Tr. at 25 (Did . . . you authorize David Shaiken to speak to Rives
Potts directly? A. No.”).
5
See Def. Ex. T (email dated December 29, 2022 evidencing Votto appearing for Ferry Landing, LLC and Shaiken
appearing for “Between the Bridges, LLC, Stack Marina LLC and Leo D. Caldarella.”).
4
Caldarella supporting agreement on a purported $85 million dollar project. Following this alleged
meeting, Potts sent Caldarella an email (P-14) in which Votto advised Potts that he was free to
obtain Ferry Landing LLC without Caldarella. Caldarella also knew that Potts, who is 74, was
recovering from a second surgery in November and Potts testified that he was on pain medication.
Caldarella’s knowledge of Potts’ compromised condition is not supposition. Caldarella confided
in his counsel Shaiken that Potts was having trouble remembering. (Ex. P-58) (“Rives has memory
problem – asks q’s over and over”) (This was understandable in that Potts had undergone general
anesthesia twice in two months).6 Caldarella also testified that he did not believe that Potts knew
the difference between the various versions of the draft Assignment. Cald. Tr. 11-01-2023 at 26,
(concerning the draft assignments, Q. Did you talk to Mr. Potts about revising it? A. I did. Q. What
did you tell Mr. Potts? A That I was to be part of that agreement. Q. What did Mr. Potts say? A
He had no objection to it whatsoever. I don’t even believe he understood that it was different than
that.”). Evidence indicates that Caldarella did all he could to take advantage of Potts’s condition,
and to separate him from Votto’s representation. All of these facts underscore why there is no
agreement.
Independently of any assignment of Ferry Landing, LLC, there were numerous material issues
lacking, to wit, and without limitation: the “price” of the South Yard, the financials of the South
Yard, and the environmental condition of the South Yard. Today, Ferry Landing, LLC owns the
North Yard as it had redeemed it out of foreclosure, and Plaintiffs still own the South Yard. Neither
Potts nor Ferry Landing, LLC, or any other entity have received an interest in the South Yard.
6
Cald. Tr. 11-02-2023 at 27 (“Q Did you ever tell anyone that you believe that Rives Potts has a memory problem?
A. I may have. Q. What do you recall about that? A I don’t -- I don’t recall saying he had a memory problem, I do
recall saying that he would consistently ask questions that -- for clarification, or what did that mean, after they had
been on the table by different people during the course of the same meeting. So I -- I did wonder about whether or
not all of the information of which was voluminous was getting – getting through and did we need more time to
continually explain to it, explaining it to him.”). See also Shaiken Tr. at 68 (“Q. What things did Mr. Caldarella tell
you about Mr. Potts? A. Just that he seemed to have to explain numerous times the same things over and over about
the development”). Id. (Q. Did you ever canvass Mr. Potts to say do you understand what we’re doing here today on
any occasion A. No. . . .”).
5
Defendants’ position is consistent with Brodeur’s statement that “Cal agreed to go with Rives’s
trust as the sole owner temporarily with the merger of the two marinas to be resolved and
consummated during the first week of January” (Ex. NNN). Brodeur also admitted that Plaintiffs
sought to defer a potential South Yard transaction until January for tax reasons. 7 Nothing was
resolved, however, in January, 2022.
2. No Material Terms Concerning Marina Village Were Agreed Upon
The evidence showed that, in addition to a brochure created for other parties, and which stated
it was for “informal discussion”, no estimated cost basis for this project was shared at any time
prior to this litigation. Nor was there any evidence that Caldarella would be either the developer
(the brochure identified a non-party entity as the developer) or the contractor for the project.
See Incor Group v. Polied Environmental & Restoration Services, CV010457219, 2002 Conn.
Super. LEXIS 1019, at *3 (Super. Mar. 28, 2002) (denying PJR, where the court found no
agreement). See id. at * 10 (“The court finds the plaintiff has failed to establish to a probable cause
standard that the defendant violated any agreements that existed between the parties.”) Similarly,
this Court should deny any request for preliminary relief as to Marina Village due to the lack of
evidence of an agreement concerning such a development.
E. There is no Probable Cause Because Caldarella Has Suffered No Damages
A court may not resort to speculation in awarding damages. A plaintiff must prove the fact
of damages and the damages themselves with reasonable certainty. Beverly Hills Concepts, Inc. v.
Schatz and Schatz, Ribikoff and Kotkin, 247 Conn. 48, 78, 717 A.2d 724 (1998). To satisfy its
burden of proving damages to a reasonable certainty, a plaintiff must “remove the question of
damages from the realm of speculation.” Id.
7
Brodeur Tr. 10-31-2023 at 211. Naturally, the law does not permit a person to defer ownership for tax purposes but
claim ownership in the same tax year.
6
When asked about how much damages he claims in relationship to Ferry Landing, LLC,
Caldarella testified in a dramatic about face from his $4 million PJR Affidavit (No. 108):
I’m not aware of a specific number of claim for damages. What I want, okay, is the ability
to build Marina Village. That’s what I’m after. That’s what I want. That’s what’s important
to me.
Cald. Tr. 11/02/2023 at 34-35. He similarly recanted damages concerning Ragged Rock. Id.; see
id. at 38 (referring to his Affidavit, “it wasn’t drafted on my personal knowledge. What I was
trying to explain in my testimony was that I was not focused on damages in terms of dollar
amounts. I was focused on the process to get to a point of preserving the right to build Marina
Village.”). Also creating a serious credibility issue that weighs against a PJR and/or temporary
injunction, Caldarella admitted under oath that he had no personal knowledge, when he signed his
PJR damages Affidavit but had just signed the document to trigger the PJR. Cald. Tr. 11/02/2023
at 38 (“I signed what was provided to me to institute this undertaking”). He now testifies, in stark
conflict with his opening damages Affidavit, that he could not get paid unless Defendants receive
all of their investment back first. Cald. Tr. (11-02-2023) at 42-43 (stating he “was going to get no
return until Mr. Potts was made whole on the dollar amount that he was investing into the project”).
The false damages Affidavit was part of Caldarella’s in terrorem message to let Potts know that
he “I’m going after you” (Cald. Tr. 11/02/2023 at 87). Caldarella’s sworn testimony should be
evaluated and discounted based on the above.8
Caldarella did not pay anything for Ferry Landing, LLC, and Potts has obtained no interest in
the South Yard Marina:
Q. Mr. Caldarella, well, as it stands today, you, and Don Brodeur, and your entities of
South Yard Marina and Stockyard Marina, you both still own the South Yard, right?
A. Still?
Q. You have the South Yard. It’s still in your possession?
A. We own it. Yes, we do.
8
Caldarella’s Affidavit asserted damages for Ferry Landing were half the “value based upon the amounts paid to
acquire the real estate or $2,627,000”, and applied similar accounting contortions to aver that “my 50% profit interest
in Ragged Rock Marina. . . is worth $1,080,000.” No. 108. Plaintiffs’ Motion for Disclosure of assets lists an amount
of $4,161,214 based off of the abandoned affidavit and should likewise be denied.
7
Q. All right. And Ms.-- no one, Mr. Potts, or some other entity didn't get half of that, right?
A. No.
Q. Okay. So, you have what you had?
A. We have what we have, and it is what it is.
Cald. Tr. 11/02/2023 at 36 (emphasis added).
Plaintiffs also fail to consider that, as to Ferry Landing, LLC, as manager Walker Potts testified,
substantial investments are being made based on years of neglect at the North Yard, and the
payment of employees is due to additional cash infusions, not the marina sustaining itself. W. Potts
Tr. 01-19-2024 at 36-39. As to Marina Village, it is impossible to consider damages without abject
speculation. There is no evidence of an agreement to use Plaintiff’s construction entity 9 (a non-
party) as the general contractor. Plaintiffs have no standing to pursue such damages even if a
written agreement did exist. See Weinberg v. Shaw, Docket No. FST CV 12 6012383, 2012 Conn.
Super. LEXIS 3191, at *32-34 (Conn. Super. Sep. 28, 2012) (denying prejudgment remedy where
plaintiff’s testimony concerning damages failed to satisfy probable cause standard). For all of these
reasons, Plaintiff have failed to establish probable cause because it cannot prove the element of
damages to any count.10
F. Setoffs Apply to Offset Any Claims; Attorneys’ Fees Award Inappropriate
In determining whether there is probable cause to issue a prejudgment remedy, the court must
take into account any defenses presented by the defendant. See TES Franchising, LLC v. Feldman,
286 Conn. 132, 141, (2008) (“Section 52-27d(a) explicitly requires that a trial court’s
determination of probable cause in granting a prejudgment remedy include the court’s taking into
account any defenses, counterclaims or [setoffs].”) Any prejudgment remedy must be setoff by
the admitted monies collected for North Yard rentals of at least $70,485.65. (See P-101). In some
9
Caldarella’s counsel attempted to imply that Caldarella’ construction company, not a plaintiff, might have somehow
profited, but Caldarella testified under cross that, “A.“MDC is not any way, shape or form owner or participant in the
North Yard, South Yard, or anything else.” (Cald. Tr. at 30).
10
See Weinberg v. Shaw, Docket No. FST CV 12 6012383, 2012 Conn. Super. LEXIS 3191, at *32-34 (Conn. Super.
Sep. 28, 2012) (denying prejudgment remedy where plaintiff’s testimony concerning damages failed to satisfy
probable cause standard as to the damages).
8
instances these payments were collected by fraudulently endorsing checks-at Caldarella’s
instruction-payable to Ferry Landing, LLC and depositing them into the South Yard Marina bank
account. As evidenced at the PJR hearing any claim to reduce this income is unsupported by legal
right or even underlying evidence. There is also evidence that Caldarella, supposedly on behalf of
BTB, relocated equipment from the North Yard to the South Yard, including a hydraulic trailer,
with no evidence of title. Cald. Tr. at 11-02-2023 at 25-26.
Finally, Connecticut follows the American Rule and unless authorized by statute, attorney’s
fees are inappropriate. Because Plaintiffs’ do not satisfy any claims under the PJR, no attorney’s
fees are appropriate. Nor have Plaintiffs’ identified their attorney rates or fee agreement. Likewise,
prejudgment interest is only available in Connecticut for contract claims with liquidated
damages. Foley v. Huntington Co., 42 Conn. App. 712, 740, 682 A.2d 1026, cert. denied, 239
Conn. 931, 683 A.2d 397 (1996).
II. Plaintiffs Are Not Entitled To A Temporary Injunction.
To be entitled to the equitable relief of a temporary injunction, the moving party must
show that: (1) it is likely to prevail on the merits of its claim after trial; (2) it faces immediate and
irreparable harm absent an injunction; and, (3) the harm it faces without the injunction is greater
than the harm an injunction would do to the defendants. Griffin Hospital v. Commission on
Hospitals & Health Care, 196 Conn. 451, 456-58, 493 A.2d 229 (1985).
Although an absolute certainty is not required, it must appear that there is
a substantial probability that but for the issuance of the injunction, the party seeking it will suffer
irreparable harm.” (Emphasis added; citations omitted; internal quotation marks omitted.) Aqleh
v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97-98, 10 A.3d 498 (2010).
1. Caldarella Cannot Prevail on the Merits After Trial
As set forth above, the Statute of Frauds bars Plaintiffs’ claims because there is no writing for
any of the alleged “agreements” concerning Ferry Landing, LLC, Ragged Rock, or Marina Village,
9
and, independently, it is undisputed that Marina Village would take more than a year to build.
Caldarella’s admission is that “nothing can be done until we have entered into a written agreement
on the parcels that will make up the Marina Village project” (echoed by his later personal counsel
L. Marks) confirms that no agreements were reached here. Accordingly, Plaintiff’s Motion for
Temporary Injunction must be denied because it is evident that Caldarella will not prevail on the
merits of any claim after trial.
2. Caldarella Cannot Show He Faces “Immediate and Irreparable Harm”
Plaintiffs have failed to show “immediate and irreparable harm”. Nor can the Court give
consideration to any alleged irreparable harm based on the uniqueness of real estate where
Plaintiffs have failed to satisfy the Statute of Frauds.
Here, Plaintiffs have not shown that they are in danger of substantial and immediate injury.
Plaintiffs’ purported showing that a Marina Village development is “feasible” is wholly
insufficient to meet their burden. 11 The ordinary meaning of “feasible” is “capable of being done,
executed, or effected: possible of realization.” Webster's Third New Int'l Dictionary 831
(unabridged ed 2002). “When we speak of a determination that compliance with a standard is
“feasible,” we mean the ordinary meaning of the word--that attainment of the approval standard is
possible--and not that attainment of the standard is probable or certain.” Gould v. Deschutes
County, 227 Ore. App. 601, 610 n.3, 206 P.3d 1106 (2009). Here, Plaintiffs have not shown that
regulatory approvals, funding and construction of Marina Village was “probable or certain”.
Instead, Marina Village, though supposedly “possible”, lacks a written development plan, lacks
any written budget, lacks any order of operations concerning regulatory approvals, lacks any
funding commitments, and requires a zoning amendment before it could even be proposed to any
11
Milone Tr. at 90 (referring to the brochure as Mr. Caldarella’s “vision”, stating that “our firm used our talents to
ensure that it was a feasible project” and that his firm’s “objective was to show something on paper that had a
reasonable expectation of moving through a regulatory process and if it was successful in that process to be able to be
constructed.”).
10
regulator. See Cald. Tr. 28-29 (Q. [Marina Village] “would actually need a zoning amendment,
right . . .? A. . . . that is correct.”).
3. A Balance of the Equities Favors Defendants
It is undisputed that Rives Potts’s family contributed 100% of the money to obtain Ferry
Landing LLC’s membership, to obtain title to the North Yard in foreclosure; and to purchase
Ragged Rock Marina. As Walker Potts testified as the manager of Ferry Landing and Ragged Rock
Defendants are running these properties currently, continuing to invest money into them, and
injunctive relief would impair their right to the use of their properties without interference by an
interloper. The equities weigh against an injunction because years of neglect must be addressed—
addressing condemned buildings, addressing the bulkhead so the marina does not fall into the river,
dredging slips so owners can dock their boats. W. Potts Tr. at 36-39. Caldarella indicated that he
would seek to prevent needed repairs if he determined that there may be a conflict with the Marina
Village concept. This Court should reject Caldarella’s efforts to interfere with the defendants’ use
and maintenance of their properties. Moreover, such concerns do not equate to irreparable harm.
Equities also do not favor a temporary injunction where evidence demonstrated that there was
no agreement as to any material terms concerning any interest in the North Yard Marina and/or
Ferry Landing LLC, the purported development called “Marina Village”, or Ragged Rock Marina.
Equity also does not favor Caldarella for his conduct while Caldarella knew Potts was dealing with
recuperating from two surgeries, in attempting to separate Rives Potts from his counsel, purported
to have him sign an engagement letter with a conflicted law firm without any written informed
consent.
Caldarella repeatedly suppressed any suspected unfavorable discussion or information,
attempting to silo information and discourse. For example, Caldarella told his lawyer Sheehan to
“stand down”, after Sheehan advised that Caldarella should not receive an assignment of Ferry
Landing, LLC’s membership ahead of a proper merger of the South Yard and Ferry Landing, LLC,
11
while concurrently Caldarella instructed his other lawyer Shaiken to demand Caldarella be on the
assignment for Ferry Landing. See Cald. Tr. 11-02-2023 at 21-22.
Caldarella’s contention that he did not know Rives Potts received 100% of Ferry Landing’s
membership is belied by knowledge and information Sheehan, Shaiken and Don Brodeur
possessed, including emails immediately forwarded from Votto to Gugliotti, all of which are
imputed to Caldarella.12 For example, when Shaiken received an email that said, inter alia, “Cal
agreed to go with Rives’s trust as the sole owner temporarily with the merger of the two marinas
to be resolved and consummated during the first week of January” (Ex. NNN emphasis added),
Shaiken then wrote to Caldarella and asked “what are Valerie and Don talking about?” (Id.)
Caldarella then responded to Shaiken and stated, “I told Don to stand down”. (Ex. P-57). See also
Def. Ex. Q. (putting Shaiken on notice that only Potts has received the Ferry Landing membership).
All of this knowledge wholly undermines every count of the complaint. This is even more so,
when coupled with Sheehan’s “stealing defeat” email (Def. Ex. N), in which he directs that
Caldarella could not take an assignment individually. In the event that the Court were to enter a
temporary injunction, then Plaintiffs should be required to post a bond in light of the substantial
damage that may ensue to the property and business of Defendants, as well as potentially impairing
interests of non-parties including the RLMCA.
CONCLUSION
Defendants respectfully request that this Court deny Plaintiff’s Motion for Prejudgment
Remedy and its Motion for Temporary Injunction, and grant such further relief as this Court deems
just and proper. Defendants also assert their objection that Plaintiffs have not complied with the
prejudgment remedy statute because there is no longer a valid affidavit supporting their application
following Plaintiffs’ withdrawal of the verified complaint.
12
See, e.g. Def Ex. II. “An attorney is the client's agent and his knowledge is imputed to the client.” National
Groups, LLC v. Nardi, 145 Conn. App. 189, 201, 75 A.3d 68 (2013).
12
DEFENDANTS
FERRY LANDING, LLC
ALLEN RIVES POTTS
THOMAS POTTS and
142 FERRY ROAD, LLC
Dated: March 1, 2024 Respectfully submitted,
/s/ James J. Reardon, Jr.
James J. Reardon, Jr.
Katherine A. Scanlon
Reardon Scanlon LLP
Juris No. 433724
45 S. Main St., 3rd Flr.
West Hartford, CT 06107
860.955.9455
860.920.5242 (f)
860.490.3594 (m)
james.reardon@reardonscanlon.com
13
CERTIFICATE OF SERVICE
I certify that a copy of the above was or will immediately be mailed electronically or non-
electronically on March 1, 2024, to all counsel and self-represented parties of record, and that
written consent for electronic delivery was received from all counsel and self-represented parties
of record who were or will immediately be electronically served.
James G. Green, Jr.
Peter Zarella
McElroy, Deutsch, Mulvaney & Carpenter, LLP
One State Street, 14th Floor
Hartford, CT 06103
jgreen@mdmc-law.com
Robert C.E. Laney, Esq.
Ryan Ryan DeLuca, LLP
1000 Lafayette Boulevard, Suite 800
Bridgeport, CT 06604
roblaney@ryandelucalaw.com
Patrick J. Sweeney, Esq.
The Law Offices of
Patrick J. Sweeny
781 Boston Post Road, No. 1143
Madison, Connecticut 06443
patrick@pjslegal.com
/s/ James J. Reardon, Jr.
14
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Preview
DOCKET NO.: MMX-CV23-6037152-S SUPERIOR COURT LEO D. CALDARELLA, individually and J.D. OF MDDLESEX derivatively on behalf of FERRY LANDING, LLC; CALMAR MARINE NORTH, LLC, individually and derivatively on behalf of FERRY LANDING, LLC, Plaintiffs v. POTTS, ALLEN RIVES, ET AL. ALLEN RIVES POTTS; VALERIE ANNE VOTTO; 142 FERRY ROAD (CT), LLC; FERRY LANDING, LLC, as a derivative defendant; THOMAS POTTS; 54 FERRY ROAD #2 (CT), LLC; and RRM2 (CT), LLC, Defendants. MARCH 1, 2024 POST HEARING MEMORANDUM FILED BY ALLEN RIVES POTTS, FERRY LANDING, LLC, THOMAS POTTS AND 142 FERRY ROAD, LLC IN OPPOSITION TO MOTION FOR PREJUDGMENT REMEDY AND MOTION FOR TEMPORARY INJUNCTION James J. Reardon, Jr. Katherine A. Scanlon Reardon Scanlon LLP 45 S. Main St., 3rd Flr. West Hartford, CT 06107 860.955.9455 james.reardon@reardonscanlon.com “I must clearly state that nothing can be done until we have entered into a written agreement on the parcels that will make up the Marina Village project. . . .” Leo Caldarella, 2/3/2023 at P-77 Defendants Allen Rives Potts (“Potts”), Ferry Landing, LLC (“Ferry Landing”), Thomas Potts and 142 Ferry Road, LLC (“Defendants”) file this Post-Hearing Memorandum. There are no written agreements, and Caldarella understood the need for written agreements. At hearing, Caldarella abandoned any claim for damages and asserted this case was entirely about his vision for “Marina Village”, a revery of an unapproved, “undetermined” development depicted only by a brochure. As set forth below, Caldarella has failed to show any element supporting either a prejudgment remedy or a temporary injunction. There was no development plan, no funding, no order of operations, no outline or budget concerning regulatory approval steps, and no cost basis shared with Rives Potts.1 The Brochure tells the Court all it needs to know: it was prepared long before Caldarella met Potts and was for “informal discussion.” The Brochure identifies a non-party entity, Marine Enterprise LLC, not Caldarella, as the developer. Any and all relief concerning “Marina Village” must be denied. I. Plaintiff Is Not Entitled to a Prejudgment Remedy A prejudgment remedy “is an extraordinary power granted in derogation of common right and common law.” Gloria v. Manuel, No. 27 22 38, 1991 WL 84000, at *1 (Conn. Super. Ct. May 2, 1991) (Katz, J.). The court’s determination of whether the plaintiff has met his burden must be based on assessment of the credibility of the witnesses and the legal issues. See Nash v. Weed & Duryea Co., 236 Conn. 746, 749 (1996).2 1 See Cal. Tr. 11-02-2023 at 5 (Q. Mr. Caldarella, the Marina Village -- the plans that you put in the exhibit, the brochure, we’ve called it the brochure, right? A. Yes. Q. That’s -- those are renderings; is that the right way to call them? A. Yes, sir. Q. The specifications for the project as yet undetermined? A.The specifications were? Q. Undetermined. A. Undetermined. Specific construction specifications were outlined in terms of general terms.” Id. at 58 (“Q. Had you had any discussion of cost with Mr. Potts in the October 2022 meeting? A Specific costs, no.”) 2 See Cal. Tr. 11/02/2023 at 20 (wherein Caldarella testified that he told Votto over the phone that Shaiken was going to replace her for Ferry Landing and, most telling of Caldarella’s fabrication, he testified that Votto “didn’t say anything” in response). As the Court will recall, Votto denied being informed by Caldarella of Shaiken’s purported 1 A. The Statute of Frauds Applies And Is Fatal to Plaintiff’s Claims Conn. Gen. Stat. 52-550 states, inter alia, that no civil action may be maintained unless the agreement is in writing and signed by the party to be charged, for any agreement for the sale of real property or any interest in or concerning real property, or for any agreement that is not to be performed within one year. C.G.S. § 52-550. Further, our courts will not enforce an oral agreement to transfer an interest in real estate and have held that the owner has a legal “prerogative” to “change[] her mind before the time [comes] to sign” a binding agreement for its transfer. McNerney v. Blake, 15 Conn. Supp. 446 (1948). Per Caldarella’s admission, there are no written agreements between Caldarella and any defendant concerning “the parcels that will make up the Marina Village project. . . .” P-77.3 The only writing as to Ferry Landing, LLC was the assignment of membership interest from Dort Cameron to Potts, dated November 21, 2022. See Def. Ex. G. Moreover, contrary to Plaintiffs’ characterization of what was discussed at a meeting on November 18, 2022, Potts’s email (P-14), on November 19, 2022 indicated his interest in acquiring the North and South Yards but no agreement was confirmed -- indeed (1) there is no mention of an allocation of profits and losses, or who would contribute what; (2) Potts asked Caldarella what he thought about Votto’s discussion in an attached email, in which Votto advises Potts that he is free to take the assignment in any manner he chooses, with or without Caldarella and (3) there is no response to Potts’s email from Caldarella. engagement for Ferry Landing, LLC. Votto Tr. 01-03-2024 at 55-56. Nor did Votto receive any of Caldarella’s self- serving handwritten letters. Id. at 57-58. Votto testified that Shaiken informed her of his purported engagement on or about January 11 or 12, 2023. Id. at 54. 3 Consistent with Caldarella’s focus on pursuing written agreements concerning the “parcels”, Plaintiffs, while opposing Defendants’ Motion to Discharge Lis Pendens, also contended that “this action is intended to affect real property”. In addition, according to the allegations of the Complaint, the parties allegedly agreed to set-up LLCs to purchase and sell real estate. An agreement to purchase and sell real estate as opposed to an agreement to simply share in the profits from real estate is subject to the statute of frauds. Yavarone v. Moroni, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 0104753 (May 10, 2005, Aurigemma, J.); Sullivan v. Thorndike, Docket No. CV010073106S, 2006 Conn. Super. LEXIS 43, at *2 (Super. Jan. 6, 2006). 2 The very last question from Plaintiffs’ counsel to Rives Potts was whether Potts had given Caldarella his “word” to go forward with the Marina Village project – which Potts denied. Plaintiffs’ counsel’s decision to attempt to confront Potts with such a question rather than with an actual written agreement underscores the lack of probable cause supporting their claims for a prejudgment remedy. Caldarella’s testimony that Marina Village would not be possible in one year brings Plaintiffs’ claims within another section of the Statute of Frauds, barring his twelve counts in their entirety: A.From beginning to end on the entire project, depending on the market conditions and what the absorption rate was going to be on UNIS [units], it could be anywhere from 36 months to 60 months. Q. So it would not be possible to do that in less than a year? A. It would not be possible to build the entire projects in one year start to finish, no. Cald. Tr. at 6-7 11-02-2023 (emph. add.). On this basis alone, under Conn. Gen. Stat. § 52-550 (a) (5) (and regardless of the application of section 4), the Court must, as a matter of law, deny the PJR and temporary injunction in their entirety. B. Caldarella Could Not Become a Member of Ferry Landing LLC Without a Writing Ferry Landing, LLC’s Operating Agreement (Def. Ex. OOO, at 11-12) also requires a writing to transfer any membership interest. Id. at Art. 10. (Article X, requiring written consent). Per Conn. Gen. Stat. § 34-243e, any person that becomes a member of a limited liability company is deemed to have assented to it. When Cameron assigned his membership interest to Potts, and the assignment provided that Potts had the authority to substitute the existing members of Ferry Landing, LLC with “such names as Buyer chooses in lieu thereof”, this written assignment and authority satisfied the Operating Agreement. See Defendants’ Exhibit G (Fully executed Assignment Agreement dated November 21, 2022). Conversely, Caldarella has proffered no such writing and has not been admitted to Ferry Landing. Caldarella, having never become a member, could not assign any right to Calmar Marine North LLC (an entity created on or about January 27, 2023). 3 C. Shaiken’s Purported Engagement Letter Is Not Evidence of Any Transfer Shaiken’s purported engagement letter does not contain any language transferring membership. See P-52. See also Shaiken Tr. 11-07-2023 at 84 (Q.There’s no assignment of any membership interest from one party to another in your engagement letter, correct?A. No. . .”). Potts testified he does not recall signing the engagement agreement, nor was Potts copied as a recipient of the letter. See P-52. Moreover, the letter contains no informed consent or disclosure that Shaiken at the time represented Caldarella and his affiliated entities in state court litigation. Conn. R. Prof’l Conduct 1.7. 4 Caldarella admitted those transfers were for past due money to the RLMCA, not a retainer. Cald. Tr. 11-02-2023 at 2. Well after the date of the engagement letter, Votto appeared for Ferry Landing, LLC at a court conference on January 3, 2023 while Shaiken appeared for “Between the Bridges, LLC, Stack Marina LLC and Leo D. Caldarella”.5 D. Plaintiffs Produced No Evidence of An Agreement On Material Terms In order to prevail on a breach of contract claim, a plaintiff must show, inter alia, mutual assent, or a "meeting of the minds," on the material terms. See generally, Arthur Linton Corbin, Corbin on Contracts, 9 (1952); Battistelli v. Corso, 30 Conn. Supp. 135, 140, 304 A.2d 676 (1973). The overwhelming testimony reflected that there was no meeting of the minds here. 1. There Was No Agreement Reached Concerning Membership in Ferry Landing, LLC Potts and Caldarella met for the first time on October 18, 2022. While there were instances of lunches with Potts and Caldarella, not even an oral agreement (and one would not be binding) had been reached with regard to combining the North and South Yard. The supposed November 18, 2022 “meeting” with Potts and Caldarella has no witnesses and there is no memorandum from 4 See also Shaiken Tr. (“Q. Did you ever tell Mr. Potts that your firm had represented Mr. Caldarella or its predecessor had represented Mr. Caldarella or his entities for going on forty years? A. No.”). Nor did Ms. Votto ever authorize Shaiken to speak her client. Votto Tr. at 25 (Did . . . you authorize David Shaiken to speak to Rives Potts directly? A. No.”). 5 See Def. Ex. T (email dated December 29, 2022 evidencing Votto appearing for Ferry Landing, LLC and Shaiken appearing for “Between the Bridges, LLC, Stack Marina LLC and Leo D. Caldarella.”). 4 Caldarella supporting agreement on a purported $85 million dollar project. Following this alleged meeting, Potts sent Caldarella an email (P-14) in which Votto advised Potts that he was free to obtain Ferry Landing LLC without Caldarella. Caldarella also knew that Potts, who is 74, was recovering from a second surgery in November and Potts testified that he was on pain medication. Caldarella’s knowledge of Potts’ compromised condition is not supposition. Caldarella confided in his counsel Shaiken that Potts was having trouble remembering. (Ex. P-58) (“Rives has memory problem – asks q’s over and over”) (This was understandable in that Potts had undergone general anesthesia twice in two months).6 Caldarella also testified that he did not believe that Potts knew the difference between the various versions of the draft Assignment. Cald. Tr. 11-01-2023 at 26, (concerning the draft assignments, Q. Did you talk to Mr. Potts about revising it? A. I did. Q. What did you tell Mr. Potts? A That I was to be part of that agreement. Q. What did Mr. Potts say? A He had no objection to it whatsoever. I don’t even believe he understood that it was different than that.”). Evidence indicates that Caldarella did all he could to take advantage of Potts’s condition, and to separate him from Votto’s representation. All of these facts underscore why there is no agreement. Independently of any assignment of Ferry Landing, LLC, there were numerous material issues lacking, to wit, and without limitation: the “price” of the South Yard, the financials of the South Yard, and the environmental condition of the South Yard. Today, Ferry Landing, LLC owns the North Yard as it had redeemed it out of foreclosure, and Plaintiffs still own the South Yard. Neither Potts nor Ferry Landing, LLC, or any other entity have received an interest in the South Yard. 6 Cald. Tr. 11-02-2023 at 27 (“Q Did you ever tell anyone that you believe that Rives Potts has a memory problem? A. I may have. Q. What do you recall about that? A I don’t -- I don’t recall saying he had a memory problem, I do recall saying that he would consistently ask questions that -- for clarification, or what did that mean, after they had been on the table by different people during the course of the same meeting. So I -- I did wonder about whether or not all of the information of which was voluminous was getting – getting through and did we need more time to continually explain to it, explaining it to him.”). See also Shaiken Tr. at 68 (“Q. What things did Mr. Caldarella tell you about Mr. Potts? A. Just that he seemed to have to explain numerous times the same things over and over about the development”). Id. (Q. Did you ever canvass Mr. Potts to say do you understand what we’re doing here today on any occasion A. No. . . .”). 5 Defendants’ position is consistent with Brodeur’s statement that “Cal agreed to go with Rives’s trust as the sole owner temporarily with the merger of the two marinas to be resolved and consummated during the first week of January” (Ex. NNN). Brodeur also admitted that Plaintiffs sought to defer a potential South Yard transaction until January for tax reasons. 7 Nothing was resolved, however, in January, 2022. 2. No Material Terms Concerning Marina Village Were Agreed Upon The evidence showed that, in addition to a brochure created for other parties, and which stated it was for “informal discussion”, no estimated cost basis for this project was shared at any time prior to this litigation. Nor was there any evidence that Caldarella would be either the developer (the brochure identified a non-party entity as the developer) or the contractor for the project. See Incor Group v. Polied Environmental & Restoration Services, CV010457219, 2002 Conn. Super. LEXIS 1019, at *3 (Super. Mar. 28, 2002) (denying PJR, where the court found no agreement). See id. at * 10 (“The court finds the plaintiff has failed to establish to a probable cause standard that the defendant violated any agreements that existed between the parties.”) Similarly, this Court should deny any request for preliminary relief as to Marina Village due to the lack of evidence of an agreement concerning such a development. E. There is no Probable Cause Because Caldarella Has Suffered No Damages A court may not resort to speculation in awarding damages. A plaintiff must prove the fact of damages and the damages themselves with reasonable certainty. Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribikoff and Kotkin, 247 Conn. 48, 78, 717 A.2d 724 (1998). To satisfy its burden of proving damages to a reasonable certainty, a plaintiff must “remove the question of damages from the realm of speculation.” Id. 7 Brodeur Tr. 10-31-2023 at 211. Naturally, the law does not permit a person to defer ownership for tax purposes but claim ownership in the same tax year. 6 When asked about how much damages he claims in relationship to Ferry Landing, LLC, Caldarella testified in a dramatic about face from his $4 million PJR Affidavit (No. 108): I’m not aware of a specific number of claim for damages. What I want, okay, is the ability to build Marina Village. That’s what I’m after. That’s what I want. That’s what’s important to me. Cald. Tr. 11/02/2023 at 34-35. He similarly recanted damages concerning Ragged Rock. Id.; see id. at 38 (referring to his Affidavit, “it wasn’t drafted on my personal knowledge. What I was trying to explain in my testimony was that I was not focused on damages in terms of dollar amounts. I was focused on the process to get to a point of preserving the right to build Marina Village.”). Also creating a serious credibility issue that weighs against a PJR and/or temporary injunction, Caldarella admitted under oath that he had no personal knowledge, when he signed his PJR damages Affidavit but had just signed the document to trigger the PJR. Cald. Tr. 11/02/2023 at 38 (“I signed what was provided to me to institute this undertaking”). He now testifies, in stark conflict with his opening damages Affidavit, that he could not get paid unless Defendants receive all of their investment back first. Cald. Tr. (11-02-2023) at 42-43 (stating he “was going to get no return until Mr. Potts was made whole on the dollar amount that he was investing into the project”). The false damages Affidavit was part of Caldarella’s in terrorem message to let Potts know that he “I’m going after you” (Cald. Tr. 11/02/2023 at 87). Caldarella’s sworn testimony should be evaluated and discounted based on the above.8 Caldarella did not pay anything for Ferry Landing, LLC, and Potts has obtained no interest in the South Yard Marina: Q. Mr. Caldarella, well, as it stands today, you, and Don Brodeur, and your entities of South Yard Marina and Stockyard Marina, you both still own the South Yard, right? A. Still? Q. You have the South Yard. It’s still in your possession? A. We own it. Yes, we do. 8 Caldarella’s Affidavit asserted damages for Ferry Landing were half the “value based upon the amounts paid to acquire the real estate or $2,627,000”, and applied similar accounting contortions to aver that “my 50% profit interest in Ragged Rock Marina. . . is worth $1,080,000.” No. 108. Plaintiffs’ Motion for Disclosure of assets lists an amount of $4,161,214 based off of the abandoned affidavit and should likewise be denied. 7 Q. All right. And Ms.-- no one, Mr. Potts, or some other entity didn't get half of that, right? A. No. Q. Okay. So, you have what you had? A. We have what we have, and it is what it is. Cald. Tr. 11/02/2023 at 36 (emphasis added). Plaintiffs also fail to consider that, as to Ferry Landing, LLC, as manager Walker Potts testified, substantial investments are being made based on years of neglect at the North Yard, and the payment of employees is due to additional cash infusions, not the marina sustaining itself. W. Potts Tr. 01-19-2024 at 36-39. As to Marina Village, it is impossible to consider damages without abject speculation. There is no evidence of an agreement to use Plaintiff’s construction entity 9 (a non- party) as the general contractor. Plaintiffs have no standing to pursue such damages even if a written agreement did exist. See Weinberg v. Shaw, Docket No. FST CV 12 6012383, 2012 Conn. Super. LEXIS 3191, at *32-34 (Conn. Super. Sep. 28, 2012) (denying prejudgment remedy where plaintiff’s testimony concerning damages failed to satisfy probable cause standard). For all of these reasons, Plaintiff have failed to establish probable cause because it cannot prove the element of damages to any count.10 F. Setoffs Apply to Offset Any Claims; Attorneys’ Fees Award Inappropriate In determining whether there is probable cause to issue a prejudgment remedy, the court must take into account any defenses presented by the defendant. See TES Franchising, LLC v. Feldman, 286 Conn. 132, 141, (2008) (“Section 52-27d(a) explicitly requires that a trial court’s determination of probable cause in granting a prejudgment remedy include the court’s taking into account any defenses, counterclaims or [setoffs].”) Any prejudgment remedy must be setoff by the admitted monies collected for North Yard rentals of at least $70,485.65. (See P-101). In some 9 Caldarella’s counsel attempted to imply that Caldarella’ construction company, not a plaintiff, might have somehow profited, but Caldarella testified under cross that, “A.“MDC is not any way, shape or form owner or participant in the North Yard, South Yard, or anything else.” (Cald. Tr. at 30). 10 See Weinberg v. Shaw, Docket No. FST CV 12 6012383, 2012 Conn. Super. LEXIS 3191, at *32-34 (Conn. Super. Sep. 28, 2012) (denying prejudgment remedy where plaintiff’s testimony concerning damages failed to satisfy probable cause standard as to the damages). 8 instances these payments were collected by fraudulently endorsing checks-at Caldarella’s instruction-payable to Ferry Landing, LLC and depositing them into the South Yard Marina bank account. As evidenced at the PJR hearing any claim to reduce this income is unsupported by legal right or even underlying evidence. There is also evidence that Caldarella, supposedly on behalf of BTB, relocated equipment from the North Yard to the South Yard, including a hydraulic trailer, with no evidence of title. Cald. Tr. at 11-02-2023 at 25-26. Finally, Connecticut follows the American Rule and unless authorized by statute, attorney’s fees are inappropriate. Because Plaintiffs’ do not satisfy any claims under the PJR, no attorney’s fees are appropriate. Nor have Plaintiffs’ identified their attorney rates or fee agreement. Likewise, prejudgment interest is only available in Connecticut for contract claims with liquidated damages. Foley v. Huntington Co., 42 Conn. App. 712, 740, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). II. Plaintiffs Are Not Entitled To A Temporary Injunction. To be entitled to the equitable relief of a temporary injunction, the moving party must show that: (1) it is likely to prevail on the merits of its claim after trial; (2) it faces immediate and irreparable harm absent an injunction; and, (3) the harm it faces without the injunction is greater than the harm an injunction would do to the defendants. Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 456-58, 493 A.2d 229 (1985). Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm.” (Emphasis added; citations omitted; internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97-98, 10 A.3d 498 (2010). 1. Caldarella Cannot Prevail on the Merits After Trial As set forth above, the Statute of Frauds bars Plaintiffs’ claims because there is no writing for any of the alleged “agreements” concerning Ferry Landing, LLC, Ragged Rock, or Marina Village, 9 and, independently, it is undisputed that Marina Village would take more than a year to build. Caldarella’s admission is that “nothing can be done until we have entered into a written agreement on the parcels that will make up the Marina Village project” (echoed by his later personal counsel L. Marks) confirms that no agreements were reached here. Accordingly, Plaintiff’s Motion for Temporary Injunction must be denied because it is evident that Caldarella will not prevail on the merits of any claim after trial. 2. Caldarella Cannot Show He Faces “Immediate and Irreparable Harm” Plaintiffs have failed to show “immediate and irreparable harm”. Nor can the Court give consideration to any alleged irreparable harm based on the uniqueness of real estate where Plaintiffs have failed to satisfy the Statute of Frauds. Here, Plaintiffs have not shown that they are in danger of substantial and immediate injury. Plaintiffs’ purported showing that a Marina Village development is “feasible” is wholly insufficient to meet their burden. 11 The ordinary meaning of “feasible” is “capable of being done, executed, or effected: possible of realization.” Webster's Third New Int'l Dictionary 831 (unabridged ed 2002). “When we speak of a determination that compliance with a standard is “feasible,” we mean the ordinary meaning of the word--that attainment of the approval standard is possible--and not that attainment of the standard is probable or certain.” Gould v. Deschutes County, 227 Ore. App. 601, 610 n.3, 206 P.3d 1106 (2009). Here, Plaintiffs have not shown that regulatory approvals, funding and construction of Marina Village was “probable or certain”. Instead, Marina Village, though supposedly “possible”, lacks a written development plan, lacks any written budget, lacks any order of operations concerning regulatory approvals, lacks any funding commitments, and requires a zoning amendment before it could even be proposed to any 11 Milone Tr. at 90 (referring to the brochure as Mr. Caldarella’s “vision”, stating that “our firm used our talents to ensure that it was a feasible project” and that his firm’s “objective was to show something on paper that had a reasonable expectation of moving through a regulatory process and if it was successful in that process to be able to be constructed.”). 10 regulator. See Cald. Tr. 28-29 (Q. [Marina Village] “would actually need a zoning amendment, right . . .? A. . . . that is correct.”). 3. A Balance of the Equities Favors Defendants It is undisputed that Rives Potts’s family contributed 100% of the money to obtain Ferry Landing LLC’s membership, to obtain title to the North Yard in foreclosure; and to purchase Ragged Rock Marina. As Walker Potts testified as the manager of Ferry Landing and Ragged Rock Defendants are running these properties currently, continuing to invest money into them, and injunctive relief would impair their right to the use of their properties without interference by an interloper. The equities weigh against an injunction because years of neglect must be addressed— addressing condemned buildings, addressing the bulkhead so the marina does not fall into the river, dredging slips so owners can dock their boats. W. Potts Tr. at 36-39. Caldarella indicated that he would seek to prevent needed repairs if he determined that there may be a conflict with the Marina Village concept. This Court should reject Caldarella’s efforts to interfere with the defendants’ use and maintenance of their properties. Moreover, such concerns do not equate to irreparable harm. Equities also do not favor a temporary injunction where evidence demonstrated that there was no agreement as to any material terms concerning any interest in the North Yard Marina and/or Ferry Landing LLC, the purported development called “Marina Village”, or Ragged Rock Marina. Equity also does not favor Caldarella for his conduct while Caldarella knew Potts was dealing with recuperating from two surgeries, in attempting to separate Rives Potts from his counsel, purported to have him sign an engagement letter with a conflicted law firm without any written informed consent. Caldarella repeatedly suppressed any suspected unfavorable discussion or information, attempting to silo information and discourse. For example, Caldarella told his lawyer Sheehan to “stand down”, after Sheehan advised that Caldarella should not receive an assignment of Ferry Landing, LLC’s membership ahead of a proper merger of the South Yard and Ferry Landing, LLC, 11 while concurrently Caldarella instructed his other lawyer Shaiken to demand Caldarella be on the assignment for Ferry Landing. See Cald. Tr. 11-02-2023 at 21-22. Caldarella’s contention that he did not know Rives Potts received 100% of Ferry Landing’s membership is belied by knowledge and information Sheehan, Shaiken and Don Brodeur possessed, including emails immediately forwarded from Votto to Gugliotti, all of which are imputed to Caldarella.12 For example, when Shaiken received an email that said, inter alia, “Cal agreed to go with Rives’s trust as the sole owner temporarily with the merger of the two marinas to be resolved and consummated during the first week of January” (Ex. NNN emphasis added), Shaiken then wrote to Caldarella and asked “what are Valerie and Don talking about?” (Id.) Caldarella then responded to Shaiken and stated, “I told Don to stand down”. (Ex. P-57). See also Def. Ex. Q. (putting Shaiken on notice that only Potts has received the Ferry Landing membership). All of this knowledge wholly undermines every count of the complaint. This is even more so, when coupled with Sheehan’s “stealing defeat” email (Def. Ex. N), in which he directs that Caldarella could not take an assignment individually. In the event that the Court were to enter a temporary injunction, then Plaintiffs should be required to post a bond in light of the substantial damage that may ensue to the property and business of Defendants, as well as potentially impairing interests of non-parties including the RLMCA. CONCLUSION Defendants respectfully request that this Court deny Plaintiff’s Motion for Prejudgment Remedy and its Motion for Temporary Injunction, and grant such further relief as this Court deems just and proper. Defendants also assert their objection that Plaintiffs have not complied with the prejudgment remedy statute because there is no longer a valid affidavit supporting their application following Plaintiffs’ withdrawal of the verified complaint. 12 See, e.g. Def Ex. II. “An attorney is the client's agent and his knowledge is imputed to the client.” National Groups, LLC v. Nardi, 145 Conn. App. 189, 201, 75 A.3d 68 (2013). 12 DEFENDANTS FERRY LANDING, LLC ALLEN RIVES POTTS THOMAS POTTS and 142 FERRY ROAD, LLC Dated: March 1, 2024 Respectfully submitted, /s/ James J. Reardon, Jr. James J. Reardon, Jr. Katherine A. Scanlon Reardon Scanlon LLP Juris No. 433724 45 S. Main St., 3rd Flr. West Hartford, CT 06107 860.955.9455 860.920.5242 (f) 860.490.3594 (m) james.reardon@reardonscanlon.com 13 CERTIFICATE OF SERVICE I certify that a copy of the above was or will immediately be mailed electronically or non- electronically on March 1, 2024, to all counsel and self-represented parties of record, and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. James G. Green, Jr. Peter Zarella McElroy, Deutsch, Mulvaney & Carpenter, LLP One State Street, 14th Floor Hartford, CT 06103 jgreen@mdmc-law.com Robert C.E. Laney, Esq. Ryan Ryan DeLuca, LLP 1000 Lafayette Boulevard, Suite 800 Bridgeport, CT 06604 roblaney@ryandelucalaw.com Patrick J. Sweeney, Esq. The Law Offices of Patrick J. Sweeny 781 Boston Post Road, No. 1143 Madison, Connecticut 06443 patrick@pjslegal.com /s/ James J. Reardon, Jr. 14 15