Opinion
No. CV08-5021879 S
February 11, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#105)
In this matter the defendant seeks to strike three of the four counts of the plaintiff's revised complaint.
Facts
The plaintiff, Annabel Osberg, filed a revised four-count complaint against the defendant, Yale University, on August 18, 2008, in which she alleges the following facts. The defendant accepted the plaintiff into its Master of Fine Arts program at its School of Art, with the plaintiff matriculating in 2007. The plaintiff paid all of the required fees in advance of matriculation and thereafter. Also, as part of the requirements of admission, the plaintiff rented a residence and a studio from the defendant. Relying on assurances made by the defendant's agents that the plaintiff was qualified for admission, the plaintiff moved to New Haven and paid all fees to the defendant. In return, the defendant presented the plaintiff with a written contract (Bulletin) in which it expressly promised her that in exchange for her consideration, should the faculty at the School of Art determine that her work was not deserving of credit, the plaintiff would be issued a letter of academic warning, and she would have until the end of the following term to demonstrate a sufficient level of quality. The plaintiff reasonably relied on these written assurances in moving to New Haven, paying the fees to the defendant, and foregoing other opportunities.
The plaintiff further alleges the following facts. On May 9, 2008, the defendant informed the plaintiff that the faculty had decided her work during that term was of insufficient quality, and that she would not be allowed to return after the completion of the term. Two months later, the defendant locked the plaintiff out of the studio and the residence she was renting from the defendant without commencing summary process actions or other legal proceedings against her. Consequently, the plaintiff has suffered economic losses and emotional distress.
Count one alleges that the defendant breached its written contract with the plaintiff, namely the Bulletin; count two incorporates the allegations of count one and alleges that the plaintiff is entitled to judgment for promissory estoppel; count three alleges that the defendant violated General Statutes § 47a-43(a) et seq. by locking the plaintiff out of her apartment. Lastly, count four alleges the defendant's conduct violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
On September 10, 2008, the defendant filed a motion to strike all counts of the complaint. The defendant moves to strike the first and second counts on the ground that the facts alleged do not state causes of action for breach of contract relating to educational services that fit within the exceptions recognized in Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996), and Faigel v. Fairfield University, 75 Conn.App. 37, 815 A.2d 140 (2003). The defendant moves to strike the third count on the ground that it is an entry and detainer claim and is barred by General Statutes § 47a-2 since the property at issue is incidental to the provision of educational services, and because the plaintiff fails to allege actual possession. Finally, the defendant moves to strike count four on the following grounds: the facts do not allege a cause of action within the Gupta/Faigel exceptions; the defendants alleged conduct is not "trade or commerce" under CUTPA, and the defendants alleged conduct is not the defendant's primary business. The defendant submitted a memorandum of law in support of its motion. On September 24, 2008, the plaintiff filed a memorandum of law in opposition. In the plaintiff's memorandum, she agrees that the motion should be granted as to count three. The matter was heard at short calendar on October 14, 2008.
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, "[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). In addition "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). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Id., 588. "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).
Counts One and Two
With respect to counts one and two, the defendant contends that the plaintiff's causes of action for breach of contract and promissory estoppel do not fall within either of the two limited circumstances in which a court may entertain an action for an institutions breach of a contract for educational services as explained in Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996). In particular, the defendant contends that the first exception recognized in Gupta does not apply because the plaintiff does not allege that the defendant provided her with an inadequate education. Further, according to the defendant, in order to state a claim under the second exception recognized in Gupta, the plaintiff must allege that the defendant failed to provide her with a specific educational service, such as a specific number of hours of instruction or particular classes. In opposition, the plaintiff simply asserts that the Bulletin constitutes a written promise that falls within the second Gupta exception for a breach of a specific contractual promise.
As the Appellate Court has explained, "[i]n Gupta, our Supreme Court joined the vast majority of states that have rejected educational malpractice claims sounding in tort. Specifically, the court noted, albeit in dicta, that a claim for educational malpractice `raise[s] questions concerning the reasonableness of conduct by educational institutions in providing particular educational services to students — questions that must be answered by reference to principles of duty, standards of care, and reasonable conduct associated with the law of torts . . . Because these tort principles are difficult, if not impossible, to apply in the academic environment, courts have almost universally held that claims of educational malpractice are not cognizable. Among other problems for adjudication, these claims involve the judiciary in the awkward tasks of defining what constitutes a reasonable educational program and of deciding whether that standard has been breached . . . In entertaining such claims, moreover, courts are required not merely to make judgments as to the validity of broad educational policies . . . but, more importantly, to sit in review of the day-to-day implementation of these policies.' . . . Gupta v. New Britain General Hospital, supra, 239 Conn. 590-91.
"The Gupta court stated that the `jurisprudential considerations that shed doubt on the viability of the tort of educational malpractice also inform our analysis of a contract claim based on inadequate educational services.' . . . Id., 591. The court noted, however, that a cause of action for institutional breach of contract for educational services exists in at least two situations. Id., 592. `The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field . . . The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program . . .' Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93." (Citations omitted.) Bell v. Board of Education, 55 Conn.App. 400, 405-07, 739 A.2d 321 (1999).
The second exception, which is the one that the plaintiff here relies upon, is consistent with the principle that "[t]he basic legal relation between a student and a private university or college is contractual in nature . . . [T]here seems to be no dissent from [the] proposition that the catalogues, bulletins, circulars, and regulations of the institution determine the contractual relationship between the student and the educational institution . . . [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, on the 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." (Citations omitted; internal quotation marks omitted.) Johnson v. Schmitz, 119 F.Sup.2d 90, 93 (D.Conn. 2000).
In the present case, the plaintiff's breach of contract claim is premised on her allegation that in the Bulletin, the defendant expressly promised that "if the faculty of its School of Art determined that her work was `not considered . . . to be deserving of credit toward the degree,' the plaintiff would be issued `a letter of academic warning' and that she would thereafter `have until the end of the following term' to demonstrate a sufficient level of quality, failing which she would `not be invited back to complete the program.'" A medical student brought a similar breach of contract claim against the Yale University School of Medicine in Morris v. Yale University School of Medicine, United States District Court, Docket No. 05CV848 (JBA) (D.Conn. April 4, 2006). In that case, the court denied the defendant's motion to dismiss for failure to state a breach of contract claim upon which relief can be granted under Connecticut law where the plaintiff had alleged "that [the] defendant failed to deliver on its express . . . contractual duties to afford each student three opportunities to pass [a licensing examination] before dismissal . . ." (Internal quotation marks omitted.) Id. The court specifically noted that "[w]hile [the] plaintiff's state law claims do not fall within the first Gupta exception, they do fall within the second exception because [the] plaintiff has alleged that [t]he provision of the student handbook granting a student [three] opportunities to pass the examination before dismissal is a distinct contractual promise independent of the defendant's obligation to offer a reasonable educational program . . . As this Court found in Johnson [v. Schmitz, supra, 119 F.Sup.2d 90], [the] plaintiff has presented a claim that [the] defendant failed to deliver on its express . . . contractual duties to afford each student three opportunities to pass the [exam] before dismissal, and this alleged [promise] [is] based on Yale's own representations and procedures related to conduct peripheral or ancillary to the central educational process. [ Id., 96]. Thus, like the plaintiff's claim in Johnson that Yale had breached its promise to safeguard students from academic misconduct, to investigate and deal with charges of academic misconduct, and to address charges of academic misconduct in accordance with its own procedures. [the] plaintiff's claim here for breach of contract does not implicate the jurisprudential considerations associated with the rejected tort of educational malpractice, as the Court or fact finder will not be required to evaluate subjective aspects of the quality of Yale's . . . academic program or otherwise make judgments on purely academic issues, but instead will determine whether or not Yale had a contractual duty . . . and, if so, whether that duty was breached. Id." (Internal quotation marks omitted.) Morris v. Yale University School of Medicine, supra, United States District Court, Docket No. 05CV848 (JBA).
The court in Morris noted that its case, as is also true of the present case, "can thus be distinguished from Faigel [v. Fairfield University, supra, 75 Conn.App. 43,] where the Connecticut Appellate court ruled that [the] defendant's alleged vague promise to give [the] plaintiff student `many credits' for her studies abroad was insufficiently specific to meet the second Gupta exception of a `specific contractual promise.'" Morris v. Yale University School of Medicine, supra, United States District Court, Docket No. 05CV848 (JBA).
The defendant's motion to strike the second count, Promissory Estoppel, for the reasons advanced in denying count one is denied.
Count Four
The defendant moves to strike the plaintiff's CUTPA claim in count four on several grounds. Its initial argument, similar to the arguments made against the breach of contract and promissory estoppel claims above, is that a determination of the CUTPA claim would require the court to intrude upon the defendant's educational decision making, therefore defeating the purpose of Gupta. General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." "[A] CUTPA claim is a statutory tort action; Lees v. Middlesex Ins. Co., 219 Conn. 644, 649, 594 A.2d 952 (1991) . . ." Wightwood School v. Fritz, Superior Court, judicial district of New Haven, Docket No. 410060 (April 9, 1999, Levin, J.) ( 24 Conn. L. Rptr. 349, 351). Thus "the same policy considerations discussed in Gupta that militate against tort liability for educational malpractice generally militate against a CUTPA claim grounded in educational malpractice." Wightwood School v. Fritz, supra, 24 Conn. L. Rptr. 351. Nevertheless, for the same reasons that the plaintiff's claim for breach of contract would not be intrusive, the adjudication of the plaintiff's CUTPA claim would not require intrusion upon the defendant's educational decision making in the manner prohibited by Gupta.
In the alternative, the defendant asserts that the medical and attorney malpractice bar to CUTPA, as explained in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), also applies to educational institutions.
In articulating this exception in Haynes v. Yale-New Haven Hospital, the court found the decision of the Michigan Court of Appeals in Nelson v. Ho, 222 Mich.App. 74, 564 N.W.2d 482 (1997), persuasive; Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 36-37; the language of which is instructive for the present case. "In Nelson, the court held that . . . Only when physicians are engaging in the entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in `trade or commerce' within the purview of the [consumer protection act]." (Internal quotation marks omitted.) Id., 36-37. In the legal profession, such entrepreneurial aspects include, e.g., the solicitation of business and billing practices. Id., 35-36 (citing Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990) (legal malpractice). They may also include the "conduct of a law firm in obtaining business and negotiating fee contracts." Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 656, 850 A.2d 145 (2004). Thus, the court concluded that "the touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated aside from medical competence . . ." (Emphasis added.) Haynes v. Yale-New Haven Hospital, supra, 38.
It is noted that the Connecticut appellate courts have not decided whether CUTPA claims that are premised on professional malpractice in fields other than medicine or law should be barred. A difference of opinion on this issue exists in the Connecticut Superior Court. Assuming, without deciding that the bar should be extended to CUTPA claims that are premised on professional malpractice in the educational context, the allegations of the plaintiff in the present case implicate the entrepreneurial aspects of the defendant's provision of educational services and, therefore, fit into the limited exception to that rule. Specifically, she alleges: "The defendant engaged in unfair and deceptive acts and practices in trade and commerce within the meaning of Section 42-110b of the Connecticut General Statutes, in that:
See Day v. Yale University School of Drama, Superior Court, judicial district of New Haven, Docket No. CV 97 0400876S (March 7, 2000, Licari, J.) ( 26 Conn. L. Rptr. 634, 637) (denied motion to strike student's claim that school continued to accept plaintiff's tuition without notifying student of issues with performance); but see Pollock v. Panjabi, 47 Conn.Sup. 179, 195, 781 A.2d 518 (2000) (holding "the Supreme Court in Haynes did not suggest that professional negligence, other than medical or legal malpractice, fell outside of CUTPA'S ambit").
"A. The defendant accepted the plaintiff into its M.F.A. program at its School of Art after a thorough review of her qualifications, background and work, fully aware of both the strengths and the weaknesses of the plaintiff's background and qualifications;
"B. The defendant persuaded the plaintiff to pay all of its fees and charges both in advance of her matriculation and periodically thereafter;
"C. The defendant persuaded the plaintiff in 2007 to rent both a residence and a studio from the defendant;
"D. The defendant repeatedly assured the plaintiff that, despite her unusually young age, she was fully qualified for admission to and successful completion of its M.F.A. program;
"E. At the time of her matriculation and payment of the aforesaid fees and charges, the defendant presented the plaintiff with a `Bulletin' which expressly promised her that if the faculty of its School fo Art determined that her work was `not considered . . . to be deserving of credit toward the degree,' the plaintiff would be issued `a letter of academic warning' and that she would thereafter `have until the end of the following term' to demonstrate a sufficient level of quality, failing which she would `not be invited back to complete the program,' and thereby persuaded the plaintiff to pay it money and rent space from it.
"F. On May 9, 2008, however, the defendant informed the plaintiff that during that very term the faculty had decided that her work was of insufficient quality and that she would not be allowed to return after the completion of that very term;
"G. On or about July 7, 2008, the defendant locked the plaintiff out of the studio she was renting from the defendant and thereafter locked her out of the residence she was renting from the defendant without at any time commencing summary process or other legal proceedings regarding either the studio or the residence aforesaid."
Whether the allegations in count four also include allegations that could be barred by the professional malpractice limitation is of no matter as Practice Book § 10-39, which "authorizes the striking of a whole complaint or a count thereof . . . does not authorize striking portions of a count." Day v. Yale University School of Drama, Superior Court, judicial district of New Haven, Docket No. CV 97 0400876S (March 7, 2000, Licari, J.) (26 Conn. L. Rptr 634, 638) (citing Armetta v. Tavano, Superior Court, judicial district of Middlesex, Docket No. 84021 (February 18, 1998, Hodgson, J.) ( 21 Conn. L. Rptr. 306, 307)). Therefore, it cannot be concluded that there is no set of facts provable under the fourth count that would constitute a violation of CUTPA.
The defendant's third and last ground for challenging the plaintiff's CUTPA claim is that the defendant's alleged conduct in locking the plaintiff out of her apartment and studio cannot be considered an "unfair trade practice" because the provision of residences and studios is not the defendant's primary business.
As the Appellate Court has stated "a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). To put this holding in its proper context, it should be noted that the issue in McCann was "whether a CUTPA claim may arise out of a transaction that is not the alleged offender's primary trade or business . . ." Id., 521. Therefore, the appropriate analysis is whether the practices or activities that the plaintiff relies upon arise out of a transaction that is not the defendant's primary trade or business.
The activity alleged to be in violation of CUTPA in McCann was the defendant's failure to disclose letters it received from the department of environmental protection which warned that the property the defendant sold to the plaintiff was contaminated. Id., 519-23. The court determined that CUTPA was not implicated because the sale of the property was merely incidental to the defendant's business of selling and servicing automobiles. In contrast, the plaintiff here alleges that the defendant, an educational corporation, required the plaintiff to rent both a residence and studio from the defendant as part of her matriculation to the M.F.A. program. Even if it is assumed that the defendant's only primary business is the provision of education, construing the facts in the light most favorable to the plaintiff, her allegations sufficiently state that the defendant's conduct in locking her out of her apartment and studio arose from a transaction that was not merely incidental to the defendant's primary trade of providing an educational program.
Conclusion
Based on the foregoing the motion to strike counts one, two and four is denied.