ie, 4247 pee pc Dubin and at uy fe Wears wip fae. DOCKET NO. CV-15-6013185, ‘ SUPERIOR COURT. KENT LITERARY CLUB OF WESLEYAN UNIVERSITY AT MIDDLETOWN, ET AL d JUDICIAL DISTRICT OF v. ‘ MIDDLESEX WESLEYAN UNIVERSITY, ET AL 7 APRIL 26, 2017 MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ‘The plaintiffs, Kent Literary Club of Wesleyan University at Middletown (Kent Literary Club), Gamma Phi Chapter of DKE at Wesleyan (fraternity), and Jordan Jancze,' commenced this, action by service of process on the defendants, Wesleyan University (university), Michael Roth, and Michael Whaley on February 20, 2015. ? The plaintiffs’ filed their third amended complaint (operative complaint) on March 10, 2016, and the complaint sounds in (1) violations of the Connecticut Unfair Trade Practices Act § 42-110b (CUTPA); (2) promissory estoppel; (3) negligent misrepresentation; and (4) tortious interference with business expectancies. The facts in this case have been extensively recited in the memorandum of decision on the plaintiffs' motion for temporary injunction and defendants’ motion to strike. See Kent Literary Club of Wesleyan University v. Wesleyan University, Superior Court, judicial district of Middlesex, Docket No. CV-15-6013185-S (une 2, 2015, Domnarski, J); Kent Literary Club of Wesleyan University v. Wesleyan University, Superior Court, judicial district of MiskessrtnDorket No. CV-15-6013185-S (June 17, 2016, ‘Superior Court Vitale, J.) RECEIVED APR 26 2017 Judicial District of Middlesex ‘State of Connecticut ' The plaintiffs filed a motion to cite in-an additional party and amend the complaint on December 1, 2015, to add Jordan Jancze, a Wesleyan undergrad and a member of the fraternity to this action. The motion was granted on December 14, 2015. ? Individual plaintiffs Tucker Ingraham and Zac Cuzner have been removed from this action. WEE fie‘The fraternity is a chapter of the male-only international fraternity Delta Kappa Epsilon. Kent Literary Club is an alumni organization of the fraternity and owns the property at 276 High Street, Middletown, CT, known as DKE House (DKE House). Jancze is a student atthe university and a member of the fratemity. The defendant Roth was president of the university at all times relevant to the operative complaint, and Whaley was Vice President for Student Affairs at the university at all times relevant to the operative complaint. The university has a policy that all undergraduate students are required to live in housing approved by the university as the residential experience is an essential part of the liberal arts education. The university allows upperclassman to apply for program housing, and applicants to program housing are approved based on criteria established by the members of each program house. In order for DKE House to be offered as a program house, as it had been, the fraternity had to sign a standards agreement, which was to be renewed or refreshed annually.’ Additionally, all university students were required to sign the housing.‘ (Defs. Motion for Summary Judgment, Ex. C.) In September, 2014, the university announced that all residential fratemities were required to become coeducated within the next three years. After the announcement, Whaley informed the plaintiffs that coeducation of the fratemity itself would not be necessary, instead coeducating DKE House would be sufficient. The fraternity and Kent Literary Club were requested to submit their plans for coeducating DKE House to Whaley by December 19, 2014. Whaley later extended the deadline to January 5, 2015. The fraternity and Kent Literary Club submitted their plan for > The standards agreement is a contract between the university and Greek organizations. The standards agreement is required in order for Greek organizations to provide housing. * A university student must sign the housing contract in order to reside in university housing. The university reserved the right to change or alter the terms of a student’s occupancy and the contract remains in effect until the student no longer attends the university.coeducating the house by the extended deadline. In a letter dated January 21,2015, Whaley informed the plaintifis that the plaintiffs’ plan for coeducation was sufficient as a starting part, but in order to be eligible for program housing for the 2015-2016 academic year the university would need confirmation by February 6, 2015, from the fraternity of: (1) the name of the sorority that the fraternity would partner with in coeducating DKE House; (2) residential policies, use of facilities, rule and administrative proceedings; (3) conversion of three rooms for female occupancy in the 2015-2016 academic year, with those residents allowed to have full and equal access to common areas; and (4) continued efforts to coeducate DKE House within three years. On February 6, 2016, despite subsequent efforts and compliance with above terms, the university suspended DKE House’s cligibility for 2015-2016 academic year. On February 13, 2015, the university notified the plaintiffs that it was terminating the standards agreement as of June 18, 2015. On July 8, 2015, Kent Literary Club and the fraternity submitted a plan to the university. On October 17, 2015, Roth informed the plaintiffs that the university would not discuss any program housing plans, submissions, or applications by Kent Literary Club or the fratemity while the organizations maintained a lawsuit against the university. Additional facts will be set forth as needed. On July 5, 2016, the defendants filed their answer, denying most of the allegations in the third amended complaint (operative complaint). The defendants filed a motion for summary judgment, amemorandum oflaw in support, and exhibits on November 16,2016. The plaintiffs filed a memorandum in opposition on December 21, 2016. The defendants filed their reply brief on January 10, 2017. Short calendar was heard on January 30, 2017.cussion of the Law and Ri “Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. .. . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. . .. However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment.” (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). “To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the “opponent.” (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223,228, 116 A.3d 297 (2015). “{N}tis only [o}nce {the] defendant's burden in establishing his entitlement to summary | judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. .. . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for theopposing party merely to assert the existence of such a disputed issue. Mere assertions of fact... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].” Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). “The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. .. . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts... which contradict those stated in the movant’s affidavits and documents.” (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn. App. 347, 358, 143 A.3d 638 (2016). ‘The defendants have moved for summary judgment (#186) on all counts. The defendants argue in their motion for summary judgment that the plaintiffs? claims fail as a matter of law as they are precluded by the unambiguous language of both the standards agreement and the housing contract. The defendants specifically argue that the plaintiffs’ claims of violations of CUTPA are meritless as the defendants were within their contractual rights to terminate the standards agreement “without cause.” The defendants argue that the plaintiffs’ claims of promissory estoppel and negligent misrepresentation are meritless because the defendants did not misrepresent what would be required to coeducate DKE House, did not engage in misleading conduct, and the plaintiffs did not rely to their detriment on any representations by the defendants. The defendants argue that Kent Literary Club’s claim of tortious interference with business expectations fails because the defendants were within their contractual rights to terminate the standards agreement. ‘The plaintiffs counter that their claims are not barred by either the housing contract or the standards agreement as their claims do not tum on a breach of either contract. Furthermore, theplaintifi3 argue that their claims of CUTPA violations are premised on negligent misrepresentation, not a breach of contract. The plaintiffs additionally argue that there are genuine issues of material fact as to their claims of negligent misrepresentation, promissory estoppel, and tortious interference with business expectancies. ‘The defendants reply that the housing contract is dispositive of Jancze’s claims and they cannot be liable for terminating the standards agreement as the university acted within its contractual rights. The defendants argue that they did not misrepresent the criteria for DKE House to remain part of the program housing initiative and there was no secret objective to force the plaintiffs from using, DKE House. Finally, the defendants argue that the claims of negligent mistepresentation, and promissory estoppel fail as the defendants did not make any misrepresentations and plaintiffs did not rely on the alleged negligent misrepresentation. A CUTPA Section 42-110b (a) provides in relevant part that““[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” “It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfaimess; (2) whether itis immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businessperson] ....All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 19,938 A.2d 576 (2008). [A] violation of CUTPA may be established by showing either an actual deceptive practice . .. or a practice amounting to a violation of public policy. . .. Whether a practice is unfair and thus violates CUTPA is an issue of fact. ...” (Citation omitted; intemal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins, Co., 269 Conn. 424, 434, 849 A.2d 382 (2004). 1 Fratemity and Kent Literary Club ‘The plaintiffs Kent Literary Club and the fratemity filed claims of CUTPA violations against the university, Whaley, and Roth. The defendants collectively rely on Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 1, for the proposition that the defendants could not be liable for a violation of CUTPA because the university was within their contractual right to terminate the standards agreement for any reason. The defendants’ reliance on Ramirez, however, is unavailing because the plaintiffs do not allege breach of contract as a basis for the defendants’ violation of CUTPA. Instead, Kent Literary Club and the fraternity allege a violation of CUTPA on the basis of representations made to the plaintiffs regarding coeducation criteria in order to keep DKE House available as a housing option in the 2015-2016 academic year. In Ramirez, the court held that “the plaintiff's claims failfed] as a matter of law because he ha{d] alleged nothing more than that, in terminating his membership, the defendant had availed itself of the rights afforded under the plain and unambiguous terms of the agreement, none of which was hidden or otherwise withheld ftom theplaintiff.” 1d,, 22. In other words, in Ramirez, the plaintiff's alleged that the breach of his contract, was a CUTPA violation. In thepresent case, the conduct alleged to violate CUTPA is not based ona breach of contract or the improper motivation for terminating the contract between the parties, but instead the defendants’ alleged negligent misrepresentations, which the plaintiffs allege were made expressly to prevent DKE House from continuing to be a housing option. The defendants, therefore, fail to show that they are entitled to summary judgment, as amatter of law, because there are genuine issues of material fact as to whether the defendants engaged in immoral, unethical, oppressive, or unscrupulous behavior when the defendants represented what changes were necessary in order for DKE House to remain a housing option for Wesleyan students. Therefore, the defendants’ motion for summary judgment fails as to counts one, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, and seventeen of the operative complaint. 2 Janeze The housing contract requires students to live in university approved accommodations and does not guarantee the students the right to a specific housing accommodation, “[A] court that is asked to enforce an asserted contract between a student and his university must examine the oral and written expressions of the parties in light of the policies and customs of the particular institution. . Because a student bases his or her decision to attend a college or university, in significant part, ‘onthe documents received concerning core matters, such as faculty, curriculum, requirements, costs, facilities and special programs, application of contract principles based on these documents and other express or implied promises, consistent with the limitations expressed in Gupta v. New BritainGeneral Hospital, 239 Conn. 574, 687 A.2d 111 (1996), appears sound.” Burns v. Quinnipiac University, 120 Conn. App. 311, 321, 991 A.2d 666 (2010). In the present case, Jancze admits that he was not guaranteed housing at DKE House, but he testified that he made his decision to attend the university on the basis of the house being one of the availablehousing options-a representation that Jancze alleges came from the university’s staff. Third Am. Compl., '50. At the time Jancze made his decision to attend the university, however, he had not seen, let alone agreed to, the housing contract. See Burns v. Quinnipiac University, supra 120 Conn, App. 321 (2010) (plaintiff's claims failed because plaintiff had signed financial aid form that clearly stated that students with unpaid tuition were not in good standing). Janeze testified in response to a question, “A: For the record, I don’t recall signing it. It was part of orientation week. I had to sign in order to come to the school, but I don’t remember signing it. Q Do you recall being presented with the housing contract? A; Lrecall going through orientation and that entails seeing the housing contract, so ipso facto yes. See Defs. Mot. for. Summ. J., Ex. p. 6. In the present case, the housing contract cannot bar Janeze’s claim because he alleges negligent misrepresentations that occurred prior to the acceptance of said contract. The university, therefore, fails to show that itis entitled to summary judgment, as a matter of law, because there are genuine issues of material fact as to whether the defendants engaged in immoral, unethical, oppressive, or unscrupulous behavior when the university represented that DKE House would beavailable as a housing option. Therefore, the motion for summary judgment as to count two is denied. B Negligent Misrepresentation “{Our Supreme Court] ha{s] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. ... Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as result.” (Citations omitted; intemal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Lid. Partnership, 309 Conn. 342, 351-52, 71 A.3d 480 (2013). “Whether evidence supports a claim of... . negligent misrepresentation is a question of fact.” (Citations omitted; intemal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn. App. 194, 201-202, 932 A.2d 472 (2007). 1 Fratemity and Kent Literary Club Kent Literary Club and the fraternity filed claims of negligent misrepresentation against the university, Whaley, and Roth. Kent Literary Club and the fraternity were informed in September, 2014, that they had three years to fully coeducate the fratemity. Then in December, 2014, the defendants informed Kent Literary Club and the fraternity that it would be sufficient to coeducate DKE House, instead of coeducating the fraternity. The defendants initially requested that Kent Literary Club and the fraternity provide plans for coeducation by December 16, 2014. The date was 10later extended until January 5, 2016, which Kent Literary Club and the fraternity complied with. On. January 21, 2016, Kent Literary Club and the fraternity were informed that their preliminary plan, submitted by the January 5, 2016 deadline, might be acceptable but would require additional information and details. Whaley informed Kent Literary Club and the fraternity that such information must be provided by February 6, 2016, or DKE House would not be available as a program housing option for the next academic year, See Defs.” Mot. for Summ, J., Ex. M. Whaley also testified that he believed the approval process would be an “iterative process;” See Def®.’ Mot. for Summ. J., Ex. G, p. 144; which juxtaposes the defendants’ hard deadline of February 6, 2015. Furthermore, in Whaley's November 25, 2014 email to Kent Literary Club, he wrote “[aJbsent a plan, even some draft ideas, we'll [hJave to revisit program housing status for 2015-16.” See Defs. Mot. for Summ, J,, Ex. 2, p. 6. There are genuine issues of material fact as to whether the university engaged in misleading conduct by not informing Kent Literary Club and the fratemity of the February 6, 2015 deadline until January 21, 2015, and what would be necessary for DKE House to remain available as a program house. Therefore, the defendant’s motion for summary judgment as to counts five, twenty-two, twenty-three, twenty-four, twenty-five, and twenty-six is denied. 2 Jancze Jancze filed aclaim of negligent misrepresentation against the university only. The university argues that Jancze did not suffer pecuniary harm because he does not know if he paid for housing, and therefore, as a matter of law, his claim of negligent misrepresentation must fail. In response to a question regarding tuition and housing costs, Jancze stated in his deposition, that: “Q. Have you ever paid any rooming costs during your time at Wesleyan? re‘A. [don’t know. Idon’t know how my actual fees turn out to, you know, where I get allocated. I take~I get about 50 percent from the university, and take out about, like another 30 [percent] in loans, and the rest ’'m responsible individually from summer earnings and essentially loans from my grandfather to pay the rest.” See Defs.’ Mot. for Sum. J., Ex. T, p. 6. ‘The university argues that it is entitled to summary judgment because there is no genuine issue of material fact that Janeze did not suffer pecuniary harm. Jancze alleges that he had to pay more in housing because he was unable to live in DKE House. The university has not presented evidence that Jancze would not have had to pay more to live in other university accommodations. Consequently, if the cost of living in DKE House would have been less then Janeze would have been responsible for paying a smaller tuition fee. Furthermore, the university has not presented evidence that Jancze’s scholarship was allocated to include housing irrespective of the potential difference in cost. There are genuine issues of material fact as to whether Jancze suffered a pecuniary harm, and therefore, the motion for summary judgment as to count six is denied. c Promissory Estoppel ‘The defendants’ argue that, because there was a valid contract between the fratemity and Kent Literary Club with the defendants, there can be no claim of promissory estoppel. “Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. ... 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. 12... 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 promise who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all... . Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [tJhe prerequisite for... application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer. .. . This, of course, is consistent with the principle that, although [a]n offer is nearly always a promise ... all promises are not offers. ...” Saye v. Howe, 92 Conn. App. 638, 647-48, 886 A.2d 1239 (2005). (Citation omitted; internal quotation marks omitted.) “[T]he question of whether statements are promissory should be considered as a question of fact . . . .” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n.6, 662 A.2d 89 (1995). 1 Fraternity and Kent Literary Club ‘There are genuine issues of material fact as to whether Kent Literary Club and the fraternity relied on the defendants’ statements that they had three years to fully coeducate DKE House in order to remain in program housing. The alleged promise was not part of the standards agreement between the parties, and therefore this cannot be construed as a breach of that agreement, but rather must be interpreted as a breach of an independent, subsequent promise. Kent Literary Club hired an architect to evaluate the building to determine what changes were feasible in order to coeducate the house. See Pls. Opp. to Summ. J., Ex. 15, p. 6. Kent Literary Club and the fratemity developed a plan to present to Whaley for approval; See Pls. Opp. to Summ. J. Ex. 15, p. 6; and negotiated with a sorority in order to comply with the university’s representation that coeducating the House would 13be acceptable to the defendants rather than coeducating DKE itself. See Defs. Mot. for Summ. J., Ex. 2, p. 5-6. There are genuine issues of material fact, and therefore, the motion for summary judgment as to count twenty-one is denied.5 2 Janeze ‘The defendants argue that the housing contract between Jancze and Wesleyan precludes his claim for promissory estoppel. The defendants’ argument, however, is unavailing. Similar, to his claim of a CUTPA violation, Jancze had not seen, or agreed, to the housing contract when the alleged promise was made. Jancze accepted the contract after the conduct Jancze alleges induced him to attend the university. The defendants have not shown that they would be entitled to judgment, as a matter of law, and therefore, the motion for summary judgment as to counts four is denied. D Tortious Interference with Business “A. successful action for tortious interference with business expectancies requires the satisfaction of three elements: ‘(1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the 5 The defendants erroneously argue that there is no cognizable basis for specific performance. See People’s Savings Bank v. T.R. Paul, Inc., Superior Court, judicial district of New Britain, Docket ‘No. CV-97-0571700-S (January 27, 2000, Beach, J.) (“[iJf there is indeed a sustainable case of promissory estoppel, then the array of contractual remedies exist, including money damages and perhaps specific performance”). The defendants’ motion for summary judgment as to the plaintiffs’ claims of promissory estoppel was denied, and therefore, remains a case of promissory estoppel. Furthermore, “{t]he availability of specific performance is not a matter of right, but depends rather upon an evaluation of equitable considerations. .. . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakaltk v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). The court retains its right to evaluate whether specific performance is required on the basis of the facts and circumstances of the case. 14relationship; and (3) as a result of the interference, the plaintiff suffers actual loss.”” American Diamond Exchange, Inc. v.Alpert, 101 Conn. App. 83, 90, 920 A.24 357 (2007). “[A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.” (Citation omitted.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 429, 780 A.2d 967, cert. dismissed, 258 Conn. 917, 782 ‘A.2d 1242 (2001) (appeal dismissed June 25, 2002). “[F]ora plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation. . . or that the defendant acted maliciously. ... [An] action for intentional interference with business relations - + Tequires the plaintiff to plead and prove at least some improper motive or improper means. ... ‘The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification. ... In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant].” (Citations omitted; internal quotation marks omitted.) Daley v. Aeina Life & Casualty Co., 249 Conn. 766, 805-806, 734 A.2d 112 (1999). ‘The defendants argue that the university was not acting tortiously when it acted within its contractual rights to terminate the standards agreement without cause, Once again, the defendants? argument is unavailing. Kent Literary Club’s claims of tortious interference with the university stem from misrepresentations of what actions would be necessary for DKE House to remain available as a housing accommodation for the 2015-2016 academic year, not that the university terminated the standards agreement. There are genuine issues of material fact as to whether the defendants intended to drive out the fraternity and acquire DKE House for the university’s own use and benefit. See 15Rock-well v. Quintner, 96 Conn.App. 221, 233, 899 A.2d 738 (holding summary judgment is not, appropriate when moving party does not eliminate all factual issues raised by allegation of complaint), cert, denied, 280 Conn. 917, 908 A.2d 538 (2006). There are genuine issues of material fact, and therefore, the motion for summary judgment as to counts eighteen, nineteen, and twenty is denied as a matter of law. In summary, the motion for summary judgment is denied as to all counts, 16