Opinion
No. CV-04-0104195S
September 16, 2004
MEMORANDUM OF DECISION ON APPLICATION FOR TEMPORARY INJUNCTION
The plaintiffs, the Kent Literary Club of Wesleyan University, the Gamma Phi Chapter of Delta Kappa Epsilon, Scott Knauert and Brian Mahr, seek a temporary injunction against the defendants, Michael J. Whaley, Peter Patton, Douglas Bennet and Wesleyan University, whereby those defendants would "desist and refrain from revoking program housing status for the DKE House for the 2004-05 academic year, and from implementing the housing selection process engaged in by University students under the belief and information that the DKE House will not be afforded program housing status."
The Complaint and Application for Temporary Injunction incorrectly refer to the defendant, Peter Patton, as Paul Patton.
After hearing, the court finds the following facts. The plaintiff, the Kent Literary Club of Wesleyan University ("Kent"), is an organization which owns real property at 276 High Street, Middletown, a fraternity house known as the DKE House. The defendant, Delta Kappa Epsilon Fraternity ("DKE"), is a national fraternity and the Gamma Phi Chapter of DKE is an unincorporated association of Wesleyan University students who are members of DKE.
The Complaint alleges that the plaintiffs, Scott Knauert and Brian Mahr, are members of the Gamma Phi Chapter of DKE and are its current treasurer and secretary, respectively. However, those plaintiffs were not present at the hearing and there was no evidence introduced to support the foregoing allegation.
The defendant, Wesleyan University, is a university located in Middletown, Connecticut. The defendant, Douglas J. Bennet, is the president of Wesleyan University, the defendant, Michael Whaley, is Wesleyan's Dean of Students and the defendant, Peter Patton, is the Interim Dean of Wesleyan University.
On the evening of October 1, 2003, DKE engaged in an event known as a "roundup," which involved gathering new members who had agreed to join DKE. The roundup consisted, in part, of upper-class members of DKE going to student dormitories and taking the new members from their rooms, making them walk in a line, and covering them with substances such as eggs, flour, and barbecue sauce. The roundup activities also consisted of the consumption of alcoholic beverages, sometimes in large quantifies, by Wesleyan freshman, who were new members of DKE.
In the early morning hours of October 2, 2003 the Wesleyan Public Safety Office responded to a call concerning an intoxicated student. When the officer arrived at the dormitory he found an extremely intoxicated freshman who stated that he had been pledging at DKE and could not remember how much alcohol he had consumed. The resident advisor informed the officer that the intoxicated student had been dropped off at the dormitory by members of DKE. The student was transported to Middlesex Memorial Hospital for treatment.
The Office of Public Safety responded to other reports of intoxicated DKE freshmen that morning. In all they found five students who were so intoxicated that they required medical attention. One stated he had consumed seven beers and another that he had consumed eight to nine shots of Jim Beam whiskey. Each of the five students had been left at their dormitory in a dangerously intoxicated condition, apparently by an upper-class member of DKE. However, it was a resident advisor or another student, and not the DKE member, who obtained medical attention for these students.
As a result of the conduct of the DKE members and their freshman pledges on the evening of October 1, 2003, Dean Whaley filed charges against DKE for violation of Wesleyan's Code of Non-Academic Conduct (the "Code"). Specifically, DKE was charged with violating the following regulations from the Code:
1. Privacy and Tranquility — The intentional infringement upon the right to privacy of any member of the community is prohibited. The persistent interruption of a reasonable level of peace and quiet is also a violation. Students should be aware that repeated violation of this regulation could result in administrative reassignment to another residential unit or area.
10. Reckless Endangerment — Creating condition(s) or an environment that endangers, or has the potential to endanger, other members of the community, their guests, or property is prohibited. Failure to take reasonable constructive action to remedy such conditions may also constitute a violation.
13. Drugs and Alcohol — The University prohibits underage and unlawful possession, use, or distribution of illicit drugs and alcohol. This prohibition includes, but is not limited to, the following . . .
c. Distribution of alcohol to underage persons anywhere on University property or at University-sponsored events.
15. Department Regulations — Members of the community are expected to abide by duly established and promulgated nonacademic regulations. This is intended to cover the operating regulations of all University programs and facilities.
On December 10, 2003 a hearing on the foregoing charges occurred before the Student Judicial Board ("SJB"), a body composed entirely of students. The SJB found DKE responsible for violations of Sections 1 and 10 of the Code and not responsible for violations of Sections 13 and 15.
On December 11, 2003 Dean Whaley reviewed DKE's program housing status with Peter Patton, Interim Dean of the College, and Rebecca Solow, the chair of the student Life Committee. Program houses are student residences which are not owned by Wesleyan, but which are considered part of Wesleyan's housing stock. Each program house is reviewed each semester in order to permit the University to carefully monitor each house and to be responsive to concerns regarding each house. At that meeting it was decided that the DKE house be put on provisional status.
Thereafter on January 7, 2004 Dean Whaley notified DKE of the sanctions imposed by the SJB: Disciplinary Probation through May 30, 2005 and arrange an alcohol education speaker for DKE members during spring 2004 and fall 2004 semesters. DKE did not appeal the sanctions. On February 6, 2004 Dean Whaley and Peter Patton met with members of the fraternity to discuss Whaley's concerns about DKE, the "roundup" and to discuss DKE's program housing status. On February 10, 2004 Dean Whaley notified DKE that its program housing status had been revoked.
The policy of the Office of Residential Life, which is not a part of the Wesleyan Student Handbook, but is found on the Residential Life website, provides that the Office of Residential Life reserves the right to terminate program housing status if there are egregious concerns about a particular program house.
In terminating the program housing status of the DKE house, Dean Whaley was not attempting to increase or vary the punishment recommended by the SJB, rather, he was attempting to protect the interests of Wesleyan University and help ensure the safety of future DKE freshmen. The DKE upperclassmen not only created a situation in which five freshmen were so inebriated that they required medical attention, but they did not even summon that medical attention. Without the conduct of resident advisors and other non-DKEs, who did see that these students received medical attention, the outcome of the roundup might well have been far more tragic.
Dean Whaley realized that there was a high potential that students could be seriously harmed by consuming large quantities of alcohol, as occurred at the DKE roundup, and was attempting to distance Wesleyan from future conduct of the same nature.
DKE members who chose to do so will be able to live at the DKE house for the academic year 2004-05 provided they obtain an off-campus housing exemption. The February 10, 2004 letter sent to DKE informing the members of the termination of program housing status also advised the DKE members that members who wished to live in the house the following year should apply for an off-campus housing exemption by February 24, 2004. As of the date of the hearing, everyone who applied for such an exemption before the February 24th deadline had been granted an exemption.
DKE house needs approximately twenty-five occupants in order to generate sufficient income to meet mortgage and other expenses. No DKE members were present to testify at the hearing, which occurred on May 19, 2003, shortly after Wesleyan's academic year had ended.
Discussion of the Law and Ruling
In order to obtain a temporary injunction, the plaintiffs must demonstrate 1) a likelihood of success on the merits; 2) imminent, substantial and irreparable injury; 3) lack of an adequate remedy at law; and 4) that a balancing of the equities favors the granting of the injunction. Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 457-58, 493 A.2d 229 (1985). Since the plaintiffs are seeking a mandatory temporary injunction, they "must meet a higher standard than in the ordinary case by showing `clearly' that [they are] entitled to relief or that `extreme or very serious damage' will result from a denial of the injunction." Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir. 1997).
Wesleyan has already terminated DKE's program housing status, so an effective temporary injunction would require that Wesleyan be ordered to reinstate program housing for DKE house.
The first element in injunctive relief is likelihood of success on the merits. The Complaint contains three counts. The First Count alleges the breach of an implied contract created by the Wesleyan Student Handbook and the Second Count alleges that the plaintiffs relied to their detriment on promises concerning discipline contained in the Student Handbook. The plaintiffs claim that the revocation of program housing status was a disciplinary measure, disciplinary measures are governed by the Handbook, the Handbook invests the SJB with exclusive power to discipline and since the revocation of program housing status exceeded the discipline suggested by the SJB, it constituted a breach of the implied contract created by the Student Handbook.
Our Supreme Court has recognized that parties can avoid creating a contract implied by the language of a handbook or manual "by including appropriate disclaimers of the intention to contract." Finley v. Aetna Life and Casualty Co., 202 Conn. 190, 199, fn. 5, 520 A.2d 208 (1987). The Student Handbook on which the plaintiffs rely provides that "This Handbook is provided to students and applicants for their general guidance only. It does not constitute a contract, either express or implied and is subject to change at the University's discretion."
The foregoing language creates a legal impediment to the plaintiffs' ability to prevail on their claim of breach of contract and promissory estoppel. But, the factual impediment is even more significant. The court finds as a matter of fact that the decision to terminate program housing status was an administrative decision, reserved by Wesleyan to its own sole discretion, and was not a form of discipline. There is nothing in the Student Handbook which provides that the Student Judicial Board is to be at all involved in decisions concerning program housing status. Rather, Wesleyan has reserved this decision to the administration.
Dean Whaley terminated the DKE house program status because he was concerned about the liability of Wesleyan in the event that a future DKE freshman were to suffer severe consequences as a result of binge drinking. It is ludicrous to assert that Wesleyan is required to trust such decisions concerning housing and the safety of students to a board composed entirely of students. However, that is the essence of the plaintiffs' argument.
The webpage for the Wesleyan Office of Residential Life indicates that Wesleyan reserves the right to revoke program housing status for any residence about which it had "egregious concerns." Dean Whaley, justifiably, had egregious concerns about DKE house based on the events of October 1, 2003.
The Third Count of the Complaint alleges tortious interference with contract on the grounds that the plaintiffs Knauert and Mahr would not be permitted to live in DKE house for the 2004-05 academic year and the plaintiff Kent would not be able to enter into leases with students for that time period.
"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. Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982); Harry A. Finman Son, Inc. v. Connecticut Truck Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975)." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).
"An action for tortious interference with a business expectancy is well established in Connecticut. The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough . . . 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 . . . Jones v. O'Connell, 189 Conn. 648, 660, 458 A.2d 355 (1983). It is also true, however, that not every act that disturbs a contract or business expectancy is actionable. Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). A defendant is guilty of tortious interference if he has engaged in improper conduct. Id., 261; see 4 Restatement (Second), Torts §§ 766, 766B, 767 (1979). [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means. Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Blake v. Levy, supra, 262 . . .
"Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort . . . Golembeski v. Metichewan Grange No. 190, 20 Conn.App. 699, 702-03, 569 A.2d 1157, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990)." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21-22, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn.App. 192, 204-05, 779 A.2d 822 (2001).
Messrs. Knauert and Mahr did not testify and there was no evidence as to whether or not they will live at DKE house in 2004-05. However, there was evidence that everyone who applied for the off-campus residency exemption by the deadline had received an exemption. There was also evidence that Kent needs to enter into leases with twenty-five students in order to pay its bills. There was no evidence presented as to how many leases it had entered into. Clearly, if Knauert and Mahr have been granted an exemption, then they will be able to live in the DKE house and will have no actual loss. If twenty-five DKE members are among those who have been granted off-campus housing exemptions, then they are free to enter into leases with Kent and that plaintiff has suffered no loss.
Based on the evidence presented at the hearing, the plaintiffs have failed to prove that any of them will suffer a loss as a result of Wesleyan's termination of DKE's program housing status. The plaintiffs have also failed to prove that Wesleyan's conduct was tortious. Rather, the court has found that Wesleyan exercised legitimate administrative discretion when it terminated the program housing status of the DKE house. Therefore, the court cannot find that it is likely that the plaintiffs will prevail on the merits of their tortious interference claim.
The showing that the plaintiffs will suffer irreparable injury is crucial to obtaining a temporary injunction. As of the date of the hearing, the court could do no more than speculate as to whether any of the plaintiffs would suffer any harm whatsoever as a result of Wesleyan's actions at issue here. All students who wish to live in the DKE house may well be able to do so, which will leave them with absolutely no infringement on the alleged right to enjoy the "associational benefits" of fraternity house life and will leave Kent with no financial loss. The court cannot take the drastic step of granting a mandatory temporary injunction without any evidence of any harm to the plaintiffs.
Finally, the plaintiffs failed to establish that a balancing of the equities weighs in their favor. See Griffin Hospital, supra, 196 Conn. at 457-58. The conduct that occurred on the evening of October 1, 2003 created serious and egregious concerns for the Office of Residential Life regarding the ability of the DKE house to meet University standard regarding housing. The decision to revoke program housing status occurred only after numerous consultations among administrators and a meeting with members of the fraternity. The harm to Wesleyan if an injunction enters is interference by the courts in an administrative decision which Wesleyan has properly reserved to itself and the potential repercussions to Wesleyan and future freshmen of a forced association between Wesleyan housing and the DKE house. The harm to the plaintiffs if the injunction does not enter is minimal, particularly because all members of the fraternity who timely applied for exemptions to live off-campus, are free to live in the DKE house.
For the foregoing reasons the Application for Temporary Injunction is hereby denied.
By the court,
Aurigemma, J.