LLC v. City of Meriden et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 111)

In an eight-count revised complaint, dated August 25, 2011, the plaintiff, Summerhill, LLC, brings the present action against the defendants, the city of Meriden, its city planner, Dominick Caruso, and its city manager, Lawrence Kendzior.¹

The defendants filed a motion to strike counts four, seven and eight of the plaintiff's revised complaint on the ground that they do not state causes of action recognized under Connecticut law or allege sufficient facts necessary to make out a legally sufficient claim.   The motion is accompanied by a memorandum of law pursuant to Practice Book § 10–42(a).   On December 2, 2011, the plaintiff filed an objection to the defendants' motion to strike and memorandum of law pursuant to Practice Book § 10–42(b).  The defendants filed a reply memorandum to the plaintiff's objection.   The matter was argued before the court at short calendar on December 12, 2011.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   As a result, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

Discussion

ICount Four

The defendants move to strike count four on two grounds:  1) that the claim is legally insufficient because there is no recognized claim in Connecticut for tortious interference with prospective economic gain, and 2) that count four fails to allege sufficient facts to support the recognizable claim for tortious interference with a business expectancy.   In particular, the defendants contend that the plaintiff fails to identify any third party with whom it maintained a business relationship but rather alleges that it was involved in multiple unnamed business relationships for a prospective benefit.   The defendants further contend that the plaintiff fails to allege that it suffered an actual loss but rather alleges only that it suffered unstated and undefined damages, which may have arisen because of the alleged interference with its unnamed and undefined business interests and relationships.

The plaintiff counters that the phrase “prospective economic gain” is synonymous with “business expectancy” and that the defendants' focus on the parenthetical title rather than the actual allegations pleaded must fail.   With respect to the actual allegations pleaded, the plaintiff argues that it is sufficient that it alleges it was involved in business relationships for the prospective profitable development and use of the property and that there is no requirement that a specific third party be identified.

“Our general practice in this state is to require fact pleading only ․ Practice Book § 10–1 requires only that each pleading contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ․” (Internal quotation marks omitted.)  Reichenbach v. Kraska Enterprises, LLC, 105 Conn.App. 461, 470, 938 A.2d 1238 (2008).   A number of decisions of the Superior Court have determined that, as such, “[i]n the context of a motion to strike, the factual allegations of the count, and not the label placed on the count, are dispositive.”   Lattanzio v. WVIT NBC–30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.);   see, i.e., Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV 05 4013929 (January 31, 2006, Corradino, J.) (40 Conn. L. Rptr. 694, 695) (striking count on basis of improper label would exalt form over substance).   Nevertheless, looking past the parenthetical title of count four, it remains that count four fails to state a legally sufficient claim for tortious interference with a business expectancy.

“It is well established that the elements of a claim for tortious interference with business expectancies are:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).  “A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ A defendant is guilty of tortious interference if he has engaged in improper conduct.”   (Citations omitted;  internal quotation marks omitted.)  Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).

“Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ․ it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.”  (Citation omitted;  internal quotation marks omitted.)   American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011).  “Thus, it must appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit.”  (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 97, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).  “If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was made hypothetical by the very wrong of the defendant.”  (Internal quotation marks omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., supra, 255 Conn. 34.

In count four, the plaintiff alleges that the defendants' intentional and tortious interference with the plaintiff's business relationships “has harmed and continues to harm the [p]laintiff, and [p]laintiff has been and continues to suffer substantial pecuniary and other damages.”   The plaintiff, however, fails to support this legal conclusion of “actual loss” with facts.  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498;  see Handex Environmental, Inc. v. Hardman, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166462 (November 18, 2002, Wolven, J.) (granting motion to strike where plaintiff fails to support legal conclusion of damages or loss with facts);  Classic Limousine v. Alliance Limousine, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0174911 (August 13, 2002, D'Andrea, J.T.R.) (same).

The plaintiff argues, however, that, pursuant to NEJ, Inc. v. Kentucky Apparel, LLP, Superior Court, judicial district of Waterbury, Docket No. CV 05 4006714 (February 10, 2006, Brunetti, J.), in order to allege actual loss, it is sufficient that the plaintiff alleges that the defendants' actions will cause damage to its business relations.   In NEJ, while the court denied a motion to strike filed on the ground that the plaintiff failed to plead “actual loss,” the complaint alleged that the defendants threatened to contact plaintiff's customers, vendors, banks, and state, local and federal authorities and made at least one contact with one of the plaintiff's business vendors in order to embarrass, harass and interfere with the plaintiff's business.  Id. As a result, the court concluded that these allegations, along with the allegation that the defendant's actions will cause damage to the plaintiff's business relations, were sufficient to plead the “actual loss” element of tortious interference with a business expectancy.  Id.

As previously stated, the plaintiff in this case alleges no such facts that support the third element of tortious interference with a business expectancy that, “except for the tortious interference of the [defendants], there was a reasonable probability that the plaintiff would have entered into a contract or made a profit.”  (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, supra, 101 Conn.App. 97.   While the plaintiff alleges that it “was involved in business relationships for the prospective profitable development and use of the [p]roperty” and while due weight must be given to such alleged hypothetical prospective gains;  see Hi–Ho Tower, Inc. v. Com–Tronics, Inc., supra, 255 Conn. 34;  without any additional facts such allegations of prospective gains are, at best, “pure speculation.”   See Norden Systems, Inc. v. General Dynamics Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 89 0101260 (November 8, 1990, Cioffi, J.) (2 Conn. L. Rptr. 766, 768) (granting motion to strike where complaint alleged, inter alia, lost future revenues and profits under subcontract, damages to good will and reputation and diminution of future business prospects);  Deutsch v. Backus Corp., Superior Court, judicial district of New London, Docket No. CV 10 6004265 (January 14, 2011, Cosgrove, J.) (51 Conn. L. Rptr. 337, 342) (granting motion to strike where complaint alleged, inter alia, significant and irreparable harm to professional and personal reputations and substantial financial losses).   In this case, the plaintiff's allegations are based on even lesser facts than were present in Norden and Deutsch.   The plaintiff attempts to argue, however, that unlike Norden, its ability to improve its property and profit therefrom was not subject to any contingencies.   Nevertheless, the plaintiff cannot avoid the speculative nature of its “prospective profitable development” by failing to allege any supporting facts and therefore count four must be stricken.

II

COUNT SEVEN

In count seven, the plaintiff alleges a cause of action in “Equitable Estoppel.”   The defendants argue that count seven is legally insufficient because there is no affirmative cause of action in Connecticut for equitable estoppel.   The plaintiff counters that the defendants, again, focus on the parenthetical title and use of the word “equitable” in the text of count seven rather than the actual allegations.   With respect to the actual allegations pleaded, the plaintiff argues that the allegations demonstrate that its estoppel claim is premised upon a promise and representations and that when the allegations are viewed in a light most favorable to the plaintiff it is clear that a cause of action for promissory estoppel has been sufficiently pleaded.   In their reply, the defendants argue that the plaintiff does not set forth the basic allegations of a claim for promissory estoppel and that count seven does not sufficiently apprise the court or the defendants as to the legal theories upon which the plaintiff intends to plead.

“Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct ․ In its general application, [the Supreme Court has] recognized that [t]here are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.”  (Citations omitted;  internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005).  “[E]quitable estoppel is available only for protection and cannot be used as a weapon of assault.”  Dickau v. Glastonbury, 156 Conn. 437, 442, 242 A.2d 777 (1968).   In this regard, “estoppel is generally not considered a cause of action, but rather is pleaded as a special defense.”  Covey v. Comen, 46 Conn.App. 46, 49 n.5, 698 A.2d 343 (1997).   Several decisions of the Superior Court have, in accordance with such precedent, determined that there is no cause of action for equitable estoppel.   See, i.e., Nationwide Mutual Ins. Co. v. Pasiak, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 08 4015401 (November 30, 2011, Brazzel–Massaro, J.).

On the other hand, “[t]he doctrine of promissory estoppel serves as an alternative basis to enforce a contract in the absence of competing common-law considerations.”  Torringford Farms Assn., Inc. v. Torrington, 75 Conn.App. 570, 576, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003).   “Under the law of contract, a promise is generally not enforceable unless it is supported by consideration ․ [The Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor ․ Section 90 of the Restatement [ (Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise ․ A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance.   Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.”  (Citation omitted;  internal quotation marks omitted.)  Stewart v. Cendent Mobility Services Corp., 267 Conn. 96, 104–05, 837 A.2d 736 (2003).

In count seven, the plaintiff alleges that as a result of the acts and omissions of the defendants, they are “equitably estopped” from denying the validity and enforceability of the agreement for retention of an independent expert.   There is no cause of action for equitable estoppel.   See Covey v. Comen, supra, 46 Conn.App. 49 n.5;  Nationwide Mutual Ins. Co. v. Pasiak, supra, Superior Court, Docket No. X08 CV 08 4015401.   While count seven incorporates by reference allegations from count one, entitled “Breach of Contract,” and while some Superior Court decisions have determined that “the factual allegations of the count, and not the label placed on the count, are dispositive”;  Lattanzio v. WVIT NBC–30, supra, Superior Court, Docket No. CV 05 5000082;  “it does not follow that a plaintiff can force a court to parse through a poorly drafted complaint to glean from it potential causes of action ․” Al–Janet, LLC v. B & B Home Improvements, LLC, 101 Conn.App. 836, 843–44, 925 A.2d 327, cert. denied, 284 Conn. 904, 931 A.2d 261 (2007).   In Al–Janet, the Appellate Court concluded that a jury charge did not improperly omit a cause of action for promissory estoppel in part because the plaintiff conceded that it failed to allege a distinct cause of action for promissory estoppel but rather alleged elements of such a cause of action in a count entitled “Breach of Contract.”   Since, in this complaint, the plaintiff simply incorporates by reference allegations from a count entitled “Breach of Contract” into a count entitled “Equitable Estoppel” but nowhere indicates a distinct cause of action for promissory estoppel, count seven is legally insufficient.

III

COUNT EIGHT

In count eight, the plaintiff alleges a cause of action entitled “Abuse of Office.”   The defendants argue that count eight is legally insufficient because there is no recognized cause of action in Connecticut for abuse of office.   The plaintiff counters that the defendants, again, focus on the parenthetical title of count eight rather than the actual allegations.   With respect to the actual allegations pleaded, the plaintiff argues that count eight supports a claim that the defendants' actions violated the fundamental fairness doctrine under which governmental officials must at all times operate under the laws and constitution of the state of Connecticut.   The plaintiff further argues that the doctrine encompasses a variety of procedural protections.   In their reply, the defendants argue that Connecticut does not recognize a cause of action based upon an abuse of office or violation of the fundamental fairness doctrine.   In particular, the defendants contend that cases discussing fundamental fairness refer to the requirement that an administrative body's decisions be “fundamentally fair” and do not consider whether a municipality or its employees are required to act fundamentally fair in the everyday disposition of their duties nor do they provide that a violation of fundamental fairness is a distinct cause of action.   The defendants further argue that if the claim is one for fundamental fairness, it should be stricken as duplicative of the sixth count, which alleges violations of due process rights and the fundamental fairness doctrine.

The plaintiff has not cited any authority, nor is it submitted that there is any authority, for the proposition that abuse of office is a cause of action in Connecticut.   On the other hand, fundamental fairness has been discussed with respect to a hearing before a local board.   See Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).  “While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence ․ they cannot be so conducted as to violate the fundamental rules of natural justice ․ Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary ․ Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act ․ and to offer rebuttal evidence ․ In short, [t]he conduct of the hearing must be fundamentally fair.”  (Citations omitted;  internal quotation marks omitted.)  Id., 608–09.

The plaintiff further argues, that, pursuant to Vichi v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 10 6003173 (April 12, 2011, Hendel, J.T.R.) (51 Conn. L. Rptr. 679), fundamental fairness encompasses a variety of procedural protections.   Nevertheless, in Vichi, the action had come to the court by way of an appeal from a decision of the zoning board of appeals for the town of Stonington.

This action, however, has not come to this court by way of an appeal from a decision of a local board nor has the plaintiff alleged any administrative hearing or proceeding where the defendants violated the fundamental fairness doctrine, thus count eight cannot stand.

CONCLUSION

The defendants' motion to strike counts four, seven and eight of the plaintiff's revised complaint is granted.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. The plaintiff labeled this complaint, which is the operative complaint, as an “Amended Complaint.”   This complaint, however, should be properly labeled as a “Revised Complaint” because it was filed in response to the court's ruling on the plaintiff's objection to the defendants' request to revise on July 26, 2011.   See Practice Book § 10–37(b)..  FN1. The plaintiff labeled this complaint, which is the operative complaint, as an “Amended Complaint.”   This complaint, however, should be properly labeled as a “Revised Complaint” because it was filed in response to the court's ruling on the plaintiff's objection to the defendants' request to revise on July 26, 2011.   See Practice Book § 10–37(b).

Markle, Denise D., J.