Opinion
FSTCV156025647S
05-24-2017
Steephill Renewables, LLC v. Board of Education of the Town of Weston
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#150.00 and #152.00)
Kenneth B. Povodator, J.
Background
This lawsuit has its origins in a solar energy project, initially enthusiastically embraced by the plaintiffs and the Weston Board of Education. In addition to the real or perceived benefits of the project in terms of local solar-based energy generation, there was an additional benefit in the form of energy credits that were to be provided by the local power company. As may be inferred from the existence of this litigation, the project never was implemented, and the plaintiffs have sued the Board, the Town of Weston, and an individual, Donald Gary, under a number of theories. The Board has filed a motion for summary judgment, and separately the Town and individual defendant have filed a motion for summary judgment. The plaintiffs have filed objections to both motions, and extensive documentation has been submitted by the parties, supporting their respective positions.
There are three corporate plaintiffs. The complaint does not identify any specific role played by each of the plaintiffs, and the motions and objections likewise do not differentiate among the plaintiffs in any useful manner. Therefore, while the claims against and motions by the defendants are individualized, no attempt will be made (can be made) to identify any distinctions as to the viability of a claim on a per-plaintiff basis. (The court notes that the parties generally have referred to the plaintiffs, collectively, as " Steephill.")
In their briefs, the parties discussed the extended development of the project, starting in 2012. For purposes of this motion, however, most of the attention needs to be placed on events starting in late June of 2013, as it is in that timeframe that the plaintiffs claim there was a contract that subsequently was breached by the defendants. In particular, the focus is on events on and after June 27, 2013.
The parties do not seem to disagree that as of June 27-June 28, the parties had agreed on most of the material terms of the project. In dealing with a governmental entity, care must be taken to distinguish between an agreement of representatives/agents engaged in discussions, and final approval by the necessary ultimate decision-maker(s)--a critical distinction in this case. The plaintiff claims that a vote of the Board of Education on June 28 constituted the necessary consent/approval of the Board to the claimed agreement and that all material terms had been resolved as of that date.
That last sentence actually encompasses two issues that the parties have not addressed in much detail. The court cannot decide a motion for summary judgment in favor of a moving party based on issues not identified in the motion and supporting brief, but the court can note the existence of the issues in terms of uncertainties that might preclude the granting of summary judgment, or might require an analysis that is not dependent upon the outcome of those issues.
First, there is the question of identification of the " contract" that was breached. There was a single project, but there were at least two separate types of documents seemingly having contract-like properties, and it appears that both needed to be in place, for the project to go forward (and possibly multiple iterations, one for each site). First, there was a document referred to as a PPA (Power Purchase Agreement) which related to the generation of power. There also was a site license, originally characterized as a site lease, which was necessary to authorize the plaintiff to install the solar energy system on each of the three school properties where the equipment was expected to be installed. The parties sometimes refer to the singular " contract" and at other times a plural of " contracts" not always with clear specificity as to number (at times, the number seems to be " 3" based on the number of schools/sites). The plaintiffs' complaint refers to the breach of a contract or agreement, as if it were in the singular (e.g. ¶ ¶ 82-83 of complaint), but there appears to be little doubt as to the need for both types of agreement and in however many iterations were actually drafted (for the three sites) for the project to be able to go forward. Therefore, no significance should be placed on possible use--especially in quoting party-positions--from the use of singular or plural with regard to the existence of a contract, unless required by context.
The second piece is the plaintiffs' reliance upon the June 28, 2013 vote of the Board of Education. The parties disagree as to what that vote meant. A full understanding of the significance of that vote would require a clear understanding of the required protocol for approval of an agreement or project such as this, by the Board of Education. The parties have not addressed this issue in any detail, and therefore any factual uncertainty would preclude reliance on the defendant's interpretation, unless it were clear as a matter of law.
In this regard, it may be helpful to note certain asymmetries. If this case were to be tried before a factfinder, the burden of proof would be on the plaintiffs to establish their claims. The burden now, however, is on the defendants to disprove those claims. The burden at trial generally would be based on a preponderance of the evidence standard; for summary judgment, each moving defendant must show entitlement as a matter of law after first establishing the absence of any material issue of fact, which is effectively a form of certainty--the combination of no issue of material fact and entitlement as a matter of law leaves virtually no room for uncertainty, factual or legal.
An additional aspect of asymmetry--if a plaintiff moves for summary judgment, it would need to establish the absence of any material factual issue, and that would pertain not only to the direct proof of liability but also negating any defenses; in establishing a right to judgment as a matter of law, defensive legal issues would need to be considered and conclusively negated. However, a defendant moving for summary judgment only needs to establish a fatal--non-circumventable--flaw, factually and legally.
Finally, the failure of a defendant to prove entitlement to summary judgment has no direct bearing on the ability of the plaintiffs to prevail at trial. The failure of a defendant to negate the existence of a contract at this stage of the proceeding does not have any value or weight with respect to the plaintiffs' eventual ability to carry their burden. A double negative is not a true positive--for example, the failure to disprove the existence of a contract in this context would not mean that there was, or that the plaintiffs can prove that there was, an enforceable contract.
Therefore, a defendant need not negate all of the elements of a claim, but only needs to negate (at least) one essential element to the requisite level (or establish a conclusive bar), to prevail as to that claim.
Against this backdrop, the court will address the issues as presented.
I. Board of Education
A. Breach of contract
The plaintiffs cite the generally-applicable standard for the existence of a contract (pp. 11-12):
It is well established in Connecticut that in order to create a contract an acceptance of an offer must occur. The acceptance of the offer must be full, explicit, and unconditional. In addition, it is well established that a contract must be definite and certain as to its terms. Finally, there must be a manifestation of mutual assent to those terms and requirements. The acceptance of the offer does not need to be express, as the words or actions of a party may indicate the offeree's assent to the proposed bargain. (Citations, omitted.)
The plaintiffs assert that " [t]he parties agreed to all material business terms." The court's difficulty is the inherent inconsistency if not impossibility of the explanation of that agreement " to all material business terms" (if it is to be treated as factual rather than conclusory), given the plaintiffs' own recitations.
Almost immediately after the above recitation of the existence of an agreement " to all material business terms, " the plaintiffs go on to recite that
Steephill agreed to all terms, revisions, and changes by the BOE and their counsel between June 27, 2013 and July 2, 2013. (Ex. A. P8; A-6.) The BOE approved the contracts at a special meeting on June 28, 2013. (Ex. A, f130; A-6). The approval stated:
Motion: Moved that the Weston Board of Education authorizes the Superintendent of Schools to execute, on its behalf, the Power Purchase Agreement and License Agreement (" Solar Agreements") with Steephill Renewables, LLC regarding the installation, operation, and maintenance of solar energy systems as described in the Solar Agreements. Motion by Mrs. Stack, second by Mrs. Spaulding, all in favor (5-0) .
This passage says that on June 28 the Board of Education approved the contracts even though, as of June 28, the agreement was not yet in final form, as changes continued to be proposed--there were changes being made through (at least) July 2. This is not a passing " slip of the tongue" by the plaintiffs:
All that remained was the formality of Steephill's signature. Steephill was reasonably led to believe that the signatures would be forthcoming once the town approvals and logistics of the summer start date had been worked out. The terms were definite and certain. Accordingly, there is a genuine issue of material fact as to whether a contract existed in the above-captioned matter.
" [O]nce the town approvals and logistics . . . had been worked out" negates finality of terms and especially negates a finally-approved agreement--but absent a finally-approved agreement, there is no agreement that can be enforced or breached.
After recapping most of these events at pages 12-14 of its brief, the plaintiffs state that " [a]s a result of the Town Building Committee meeting on July 2nd, Dr. Palmer directed Joann Keating and Andrew Galli to shred her signature pages on the signed contracts." The plaintiffs further acknowledge that they never were provided with a signed version of any contract documents, and no contract documents were signed on behalf of the plaintiffs. They go on to state, however, that they made an offer, the offer was accepted by the board, the parties accepted the material business terms, the agreement received approval from the board, and the superintendent executed the contracts. Again, that must be reconciled with the plaintiffs' statement that " [a]ll that remained was the formality of Steephill's signature" and that " the town approvals and logistics of the summer start date" had not yet been finalized (" worked out").
In connection with a proposed contractual relationship requiring execution of the documents, query whether a signature of a party that intentionally is never delivered to the opposing party constitutes satisfaction of the requirement of execution by that party, analogous to the requirement of delivery of a gift.
Perhaps simplistically, the court has a threshold concern: when is it that the plaintiffs claim a binding contract came into existence? Determining whether a factual issue is material requires a context. For example, if there is a claim that the contract came into existence on June 28, 2013, then evidence demonstrating that on June 27 there had been some uncertainty as to a term--even a critical term--of a contract might not be material, if subsequent events (prior to the June 28 approval) resolved that uncertainty. Conversely, if an agreement as to a particular term had been " reopened" as a result of subsequent events--but prior to the date of a claimed final agreement--then there would seem to be a need for some indication of a resolution of that issue in order to claim that a final agreement had been reached.
The plaintiffs seem to be claiming that the agreement was reached on June 28, 2013, when the Board voted to authorize the Superintendent to sign appropriate documents. Inherently contradictorily, the plaintiffs acknowledge that negotiations continued thereafter. Further, the plaintiffs do not appear to suggest that there is a dispute (material issue of fact) as to whether any possible agreement/authorization as of June 28 had been conditioned upon final drafting of agreements by counsel for the Board--the plaintiffs have not suggested that there is a factual issue as to the possible existence of final counsel-approved documents. Still further, the plaintiffs do not appear to dispute the contention of the defendant that one type of contract document, the PPA, contained a provision requiring execution of the document, before it would become operational --and the plaintiffs acknowledge that plaintiffs never signed the contract documents. Absent an agreement (or claimed agreement) to waive execution as a condition of the agreement, there could have been no final and enforceable agreement. In this regard, the generally-applicable standard recited by the plaintiffs does not apply--if the parties agree that a level of formality is required, then absent a waiver of that provision, the formality is required.
In its brief, the defendant states that the then-most-recent version of the PPA provided that the PPA would " be effective upon execution by both [p]arties" (citing the June 26, 2013 version at p. 8.) The plaintiffs do not appear to dispute the accuracy of that recitation or its significance.
Recently, in Al Dente, LLC v. Consiglio, 171 Conn.App. 576, 157 A.3d 743 (2017), the court recognized and briefly addressed a proposed contract that required written signatures for the agreement to be binding; 171 Conn.App. at 591-92. Although the discussion noted the realty-oriented nature of the agreement which might require a signed agreement, the court focused on the explicit requirement of the proposed agreement that made signatures an essential requirement. In addition, the court discussed the implications of ongoing discussions and reviews, relating to whether there was, in fact, a final agreement, with suggestions and comments not vitiating the finality of terms. Conversely, an agreement to engage in, or continue, negotiations was not deemed an enforceable agreement on the merits of the underlying transaction, absent an agreement as to final terms.
At pp. 16-18 of the defendant's brief, there is a recitation of events over the weeks following June 28, 2013, reflecting complementary lack of finality and continuing discussion of terms and needed modifications to the terms of the then-existing version of the agreement. The plaintiffs have not questioned the accuracy of that recitation--seemingly necessary if the claim is that there was a final and binding agreement or even a material issue of fact as to the existence of a contract.
If the date on which a final and definite agreement was reached was some time after June 28, 2013, then in addition to the lack of specificity as to when the parties are claimed to have reached an agreement, there is the additional issue of when and how the defendant Board expressed such assent--because in such a scenario, the assent would have been based on a superseded version of the agreement. The defendant maintains that there never was an assent--where and when did the defendant's assent come into existence, according to the plaintiffs, for purposes of establishing a material issue of fact as to this essential element of contract formation? Is it the plaintiffs' contention that an assent on June 28, 2013 applied to an agreement that had yet been reached? The plaintiffs do acknowledge the continuation of discussions relating to modifying the terms of the project--in a contractual sense--well into July.
The court recognizes that the defendant disputes the characterization of the authorization of the Superintendent to sign documents as being approval of the contract itself. The court must give the non-moving party the benefit of all favorable inferences, and cannot resolve factual disputes; therefore, the court cannot accept the defendant's interpretation of the significance of that approval/authorization for purposes of this motion.
Again, the oft-cited final paragraph of the plaintiffs' discussion provides a context for summarizing the " problems" with the plaintiffs' position:
In conclusion, Steephill made an offer, the offer was accepted by the BOE. Both parties accepted the material business terms, received approval from the BOE, and the Superintendent of Schools executed the contracts. All that remained was the formality of Steephill's signature. Steephill was reasonably led to believe that the signatures would be forthcoming once the town approvals and logistics of a summer start date had been worked out. (Ex. A.) The terms were definite and certain. Accordingly, there is a genuine issue of material fact as to whether a contract existed in the above captioned matter.
Although the paragraph states the conclusion that there was a final agreement and that " [t]he terms were definite and certain, " the plaintiff also states that " Steephill was reasonably led to believe that the signatures would be forthcoming once the town approvals and logistics of a summer start date had been worked out." Putting aside the question of the significance of the signatures of Ms. Keating, the plaintiffs acknowledge that they had never signed any final documents, and that there still remained questions as to " town approvals" and working out the logistics of a summer start date. The plaintiffs identify the need for a summer start date, and do not dispute the importance to the defendants of the work being performed during the summer vacation period--they do not dispute that start and completion dates were material concerns of the Board (seeking to avoid any overlap between the school year and construction-type activities). This paragraph confirms the lack of fully-executed agreements, identifies the conditional nature of the agreement (dependent on town approvals) and recognizes the unresolved issue of when the work would start (with the corollary of when the work would be completed). This is in addition to the unrebutted assertion that the contracts were subject to final approval by counsel and the corollary that the process of determining final language was an ongoing process, and the plaintiffs' unsurprising insistence that they have a chance to review final language before final execution. If the plaintiffs insisted on an opportunity to approve the proposed final version of contract documents, how can they also state that there was an enforceable agreement prior to such final approval?
For purposes of this motion, the court must assume that the plaintiffs' characterizations are proper--or that there is at least a material issue of fact as to the propriety of those characterizations.
The lack of a final and complete agreement, as of June 28, 2013, is established/confirmed in the emails submitted by the plaintiffs. For example, on July 1, 2013, the Board's attorney sent an email to Ms. Keating inquiring about the contract: " On the guaranteed production requirement, the Seller is supposed to provide 80% of Estimated Production. Estimated Production is not defined in the agreement. Is there something that the Seller has prepared that would describe what the estimated production is supposed to be?" Impliedly, the attorneys did not perceive there to be a final product. The plaintiffs' response on July 2, 2013, after the email had been forwarded to the plaintiffs' principal, confirms the lack of finality and completeness: " I have attached PV Watts which is the industry standard for solar engineering output. Please focus your attention on [designated entry]. That is the annual estimated production number. We will to commit to 80% of that figure in contract. I am sending a PV Watts sheet for each school." (The court was reluctant to replace " will to" in that final sentence with any specific presumed language, but assumes it either was intended as " are willing to" or simply " will" --but either interpretation confirms the incompleteness of the then-existing versions of documents with respect to a presumptively material term, i.e. the actual amount of guaranteed production.) As another example, see email of August 5, 2013 (Bates page 000124) in which the plaintiffs acknowledges the usual practice of getting a signed contract before posting a bond, the fact that that was not done here, but that given the uncertainties as to whether the project would go forward, the plaintiffs were seeking reimbursement for the bond-costs already laid out, and asking for signed contracts by the following February.
The recent decision in Meridian Partners, LLC v. Dragone Classic Motorcars, Inc., 171 Conn.App. 355, 356, 157 A.3d 87 (2017), is informative. Although arising in the context of a dispute as to whether there had been an enforceable settlement agreement, the court's discussion of the level of certainty needed for an enforceable agreement is equally applicable here, as the Audubon concept of summary enforcement of settlement agreements is premised on contract principles--the existence of a sufficiently-definite agreement to allow summary enforcement. In Meridian, the court concluded that an agreement to have confidentiality provisions that had yet to be drafted (and agreed to) necessarily made an agreement incomplete, and therefore precluded the existence of a sufficiently-definite and final agreement for enforcement; 171 Conn.App. at 367-68. The court contrasted that with a situation in which the parties had agreed to inclusion of confidentiality provisions without any apparent question as to its terms--the agreement did not require any further approvals and the parties agreed to the completeness of the agreement. Somewhat simplified, the court distinguished an agreement in principle subject to final drafting of terms and review-by-counsel and approval, from an agreement as to which there is no disagreement as to terms and no need for review and no need for approval. Here, at a minimum, both sides were insistent on a right to review or approve of final versions of documents before execution, a stage that never was reached.
Audubon Parking Assocs. Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993).
The plaintiff then discusses in its brief the involvement--characterized as questionable--of the Town's Building Committee. This is emphasized by the reference: " Further, Dr. Keating advised Steephill that the BOE had sole authority and no Town agency would be involved." The brief then goes on to identify a meeting on July 3, 2013, describing what did occur at that meeting in terms of getting the project underway, and then describing what did not happen: " The BOE did not notify Steephill or its contractors that there was no contract, no approval for a contract, or no intention to move forward with the project at that time." The issue is not whether the plaintiff was informed of the negative, in an affirmative sense, but rather whether there is a factual issue as to whether an enforceable agreement existed at that--or any--time. The plaintiffs have not presented any evidence negating the existence of a requirement that counsel for the Board needed to approve any final agreement and have not presented any evidence negating the existence of a requirement that signed documents were required and have not presented any evidence that material terms did not remain open (including start date for work and therefore target year for completion/operation). (Further, whether Town-based approvals were required, or Town-involvement in some other sense was required, is not an issue of fact but an issue of law, as discussed below.)
The defendant has identified numerous other issues that were unresolved, at the time that the plaintiffs claim that there was an agreement as to all material terms, including the Board's right of assignment and issues pertaining to snow removal. The court has focused only on a few of the areas that were unresolved and/or precluded the existence of a final and binding contractual relationship.
Therefore, the plaintiffs have not established the existence of a material issue of fact that would preclude summary judgment as to the non-existence of an enforceable contract (set of contracts); absent an enforceable agreement, there can be no actionable breach of that agreement. On a number of levels, the plaintiffs have agreed that no enforceable agreement ever came into existence. The motion for summary judgment, based on the non-existence of an express contract, is granted.
B. Implied Contract
Both sides rely, to varying degrees, on the evidence identified in support of their respective positions relating to the existence of an express contract, and the plaintiff especially relying on efforts directed towards reaching a binding agreement. The issue, however, is the extent to which there was an implied--not express--agreement, coupled with the extent to which services and/or materials actually were provided.
The defendant does not dispute the equitable origins of the claim being asserted. The defendant largely contends that the work that the plaintiffs claim to have done was preparatory in nature or unsolicited or of no value to the defendant.
The expenditures incurred in trying to procure a contract generally are a cost of doing business for the entity seeking a contract; see, e.g., Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 722 A.2d 271 (1999); but the line in this case is not clearly drawn. The plaintiffs are claiming that at least some of the conduct undertaken was in the nature of performance of an implied agreement which tends to demonstrate the existence of an implied contract. In particular, the plaintiff claims that it was asked to provide " financial analysis, financial calculations, and stamped structural drawings" (brief at page 15, citing Exhibit A-7). The defendant disputes the claim that it asked the plaintiff to provide such materials, instead asserting that the plaintiff provided materials voluntarily and without any request from the defendant. That, of course, is a factual issue. Likewise, the existence of a value or benefit to the defendant from the claimed performance--denied by the defendant--is a factual issue.
The court cannot resolve factual disputes in the context of summary judgment. Further, the court is limited by the manner in which the issue has been joined. Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 603 A.2d 389 (1992) has been cited by the plaintiff as typical of controlling authority for this aspect of the dispute, and to the extent that the plaintiff proves an implied contract and performance, the plaintiff could be entitled to relief for such performance; 221 Conn. at 241-42. Therefore, the motion as pertains to the claim of implied (in fact) contract must be denied.
The plaintiffs have not addressed the scope of any such implied contract. If there were an implied contract, it likely would encompass services and materials provided, on the theory that the services/materials had been provided pursuant to the implied contract; to the extent that the plaintiffs might claim that it was the entire project, there would be issues relating to the ability to circumvent formally/legally-required approvals--a significant issue relating to the express contract claims--through a claim of implied (in fact) contract. The court need not address the scope of such a claim, for purposes of this motion.
C. Promissory estoppel
The claim of promissory estoppel, as articulated by the plaintiffs, in part has a circular or bootstrap quality to it: The defendant (and its representatives/agents) promised that there would be a contract and the plaintiff relied on the promise of a contract, so the promise of a contract is enforceable.
Among the authorities cited by the plaintiff is Torringford Farms Ass'n, Inc. v. City of Torrington, 75 Conn.App. 570, 816 A.2d 736 (2003), and in that decision, the court states that " D'Ulisse-Cupo controls the present case." 75 Conn.App. at 576. Therefore, it is appropriate to look to D'Ulisse-Cupo more closely.
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. D'Ulisse-Cupo v. Bd. of Directors of Notre Dame High Sch., 202 Conn. 206, 213, 520 A.2d 217, 221 (1987).
Although the plaintiffs repeatedly refer to " promises, " the principal action of (or on behalf of) the defendant is the claimed assurance that a contract would be signed and that the plaintiff would get the opportunity to do the project. That trivializes the concept. Promissory estoppel is not simply reliance on the hope that a contract would (eventually) be executed which expectation was frustrated--it requires performance based on promised performance by the adverse party. Although this largely overlaps the implied contract theory, here the emphasis is on that which was promised to be done in a substantive sense, not merely an expectation of a formal contract. In somewhat simplistic terms, a contract is an enforceable agreement relating to performance of mutual obligations, whereas promissory estoppel lacks the enforceable agreement but focuses on performance by one party in reliance on the promised performance of an obligation by the other. There is no identified promise on which the plaintiffs reasonably could have relied.
The parties, including the plaintiffs, recognize that there must be reasonable reliance. Unless approvals were ministerial in nature, there was necessarily an inherent uncertainty as to whether a formal contract would be reached. The plaintiffs could not reasonably have relied on a perceived promise that a contract would eventually exist when they knew of the existence of a formal (if at times seemingly imprecise) approval process, and the need to get final approvals throughout that process, in order to have a valid and enforceable agreement. The plaintiffs may have been justifiably frustrated by the changing identification of approvals that were needed, but there can be no justifiable reliance on any discretionary approval process.
Although there are conclusory claims that the approval process was or might have been ministerial, there is nothing in the complaint or evidentiary record that would raise that contention to a material issue of fact. Absent evidence of reasonable reliance, the defendant is entitled to summary judgment on this claim.
D. Unjust enrichment
Unjust enrichment also has similarities to implied contract, to the extent that the court is asked to determine the equities of the situation and compensate the plaintiff accordingly. Unjust enrichment focuses on the benefit received, and the defendant vehemently denies any benefit. Again, the parties disagree as to whether certain analyses and drawings had been requested by the defendant or had been provided without request by the plaintiffs. The corollary of benefit is largely tied to that dispute--if the plaintiffs had been asked to provide the information and if it reasonably could be of value to the defendant, then it becomes a matter of proof. The defendant's denial of value is not determinative--if the materials provided could be used by a subsequent project contractor, or otherwise used by the defendant in another project, then the materials have a potential non-zero value, and the court cannot dismiss the plaintiffs' claims in that regard.
To the extent that the plaintiffs argue that the cost of preparing materials were incorporated into the proposed pricing structure for the project, that may be so, but any agreement to pay for the materials necessarily was conditioned on agreement to pay for the project as a whole. As previously noted, the cost of preparing a submission, whether pursuant to a bid or RFP or other solicitation, remains a cost of doing business for the prospective vendor unless and until it can be incorporated into an actual contract. Ultimately, this contention depends on a misunderstanding of unjust enrichment--it is measured by the benefit to the defendant, not the cost to the plaintiffs (although the cost may provide relevant information relating to benefit).
Despite the seeming over-inclusion of claims by the plaintiffs, the defendant has not negated the factual quality to the dispute as to whether any benefits were conferred or their value. The information and materials provided were of potential value and the denial of actual value to this party cannot be determinative under these circumstances. The motion for summary judgment, as to unjust enrichment, must be denied.
E. Negligent Misrepresentation
Much of this argument relating to this claim relies on the ongoing discussions between Board and/or Town officials with the plaintiffs. There may be no question that the plaintiffs expended efforts and money in pursuit of the project, and they may have been encouraged to believe they would get the project, but the question for misrepresentation always comes back to identification of a statement of fact that was false--and in connection with negligent misrepresentation, negligently made. There also is a requirement of reasonable reliance.
The plaintiffs contend that they were misled as to the required process for obtaining a contract. Is that a factual matter? Contract formation is generally fact-intensive, but to the extent that the plaintiffs claim to have relied on the need or lack of need to follow certain (legally-required) government-approval procedures, that is legal rather than factual in nature. (As noted earlier, required governmental approvals, whatever they may be, are legal requirements rather than factual issues.) At times, the plaintiffs acknowledge such characterization, e.g. at page 22 where they state that the Board represented that it was in full control under State law . Assurances that it would get the contract are not statements of fact; a statement predicting future events can constitute a misrepresentation only if known to be, or at least demonstrably was, inaccurate at the time the statement was made, and there is no suggestion of that present " factual" component for such predictions.
The representations made to Mr. Lafayette, and the information given concerning the process to be followed, as well as the requests for specific information such as financial analysis, calculations and engineering studies: and authority to negotiate and obtain ZREC credits for the benefit of the Weston Public Schools from CL& P/Eversource, are all based upon statements to Lafayette by the BOE and its representatives. The multiple steps in putting together a project such as this were taken based upon statements made to Mr. Lafayette by BOE representatives, with the full expectation that the matter was following the correct process through the BOE and that the contract would be executed and performed. This was the specific representation in the contract drafted by the BOE's attorney. As of July 3, 2013, the date of the mobilization meeting with Mr. Clarke, the Board's Facilities Manager, all parties expected to proceed with the Power Purchase Agreement and complete the work prior to the reopening of school after Summer vacation.
The " process to be followed" related to requirements of the Board for a contract. It is unclear at best as to how " the requests for specific information such as financial analysis, calculations and engineering studies" can be equated to factual representations or misrepresentations. Authority to negotiate also is largely a legal question, at least in a governmental context--the authority of an agent generally is determined by the conduct of the principal and not the conduct (or representations) of the purported agent (other than an agent's acceptance of the role); see, e.g., Nat'l Publ'g. Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 678, 949 A.2d 1203 (2008); but in connection with governmental agents, it is more a matter of law, Keeney v. Old Saybrook, 237 Conn. 135, 676 A.2d 795 (1996); Norwalk v. Board of Labor Relations, 206 Conn. 449, 538 A.2d 694 (1988).
As reflected in the quoted paragraph, it is understandable that the plaintiffs had expectations that a binding and final contractual relationship would eventually be created, but absent a then-current intent not to reach a contract, the conduct leading to an unsuccessful relationship cannot be characterized as negligent misrepresentation. There is no suggestion that at the time optimistic statements as to the future course of events were made, there was any then-known basis to state that the statements were not true or the expressed intent was not accurate.
The legal quality of much of the plaintiffs' complaint in this regard is established by the plaintiffs' discussion of the statutory authority of a board of education with respect to school facilities. If the plaintiffs are correct--that the First Selectperson and the Town Building Committee had no authority to intercede or otherwise raise objections--that is a legal issue, not a factual issue. And whether the plaintiffs are correct in interpreting the statutes also is a legal question. Disputes as to the scope and interrelationship of authority as between a local municipal government and the corresponding local board of education is an ongoing subject of legal decisions, as varying situations arise; Canzonetti, supra (use of school property for municipal purpose (road)); Board of Education of Town of Ellington v. Town of Ellington, 151 Conn. 1, 193 A.2d 466 (1963) (control over specific educational expenditures); Board of Education of Town and Borough of Naugatuck v. Town and Borough of Naugatuck, 268 Conn. 295, 297, 843 A.2d 603, 606 (2004) (control over budget approval process); the plaintiffs cannot create a claim of factual misrepresentation out of uncertainty arising from conflicting positions relating to formal approval processes between a board and a municipal government.
Aside from the difficult-in-principle issue of a claim of misrepresentation by failure to speak, the plaintiffs further conflate legal and factual issues when it states that " [a]t no time prior to the Summer of 2013, did any BOE representative suggest that a review by the Weston Planning & Zoning Commission was required under Section 8-24 of the Connecticut General Statutes." The failure to identify a legal requirement is not a factual statement--and even if there were a claim of an affirmative negation of such a requirement, it still would be legal rather than factual in nature. The plaintiffs have not suggested a basis on which they might reasonably have relied on a misstatement of law, if in fact the project were subject to such mandatory review. The statute (§ 8-24) may well be a trap for the unwary, but when applicable, the failure to follow its mandates can have draconian consequences; see, e.g. Trivalent Realty Co. v. Town of Westport, 2 Conn.App. 213, 218, 477 A.2d 140, 144 (1984).
As to applicability of § 8-24 to solar projects on school property, see Panek v. Town of Southington, No. HHBCV156030083S, 2015 WL 7269317, at *3 (Conn.Super.Ct., Sept. 24, 2015) [61 Conn.L.Rptr. 154, ].
The Town further has claimed that governmental immunity is applicable and determinative, to the extent that the plaintiffs are alleging a negligence-based claim (negligent misrepresentation). Responding to the defendant's invocation of governmental immunity as a legal bar to liability under this theory, the plaintiff cite Bellsite Dev., LLC v. Town of Monroe, 155 Conn.App. 131, 107 A.3d 1028 (2015), for the proposition that because Bellsite was not decided on the basis of governmental immunity, governmental immunity must not be available or must not have been available.
In attempting to negate the possible applicability of the identifiable victim exception to governmental immunity, the defendant somewhat loosely states that the plaintiffs were not identifiable victims. The court has interpreted that as an inartful way of stating that they did not satisfy the exception to governmental immunity for identifiable victims. The plaintiffs were identifiable (in the sense that they were parties to a proposed project/contract and therefore not simply members of the public)--the focus of the argument is that they did not satisfy the requirement of being at risk for imminent harm.
There are numerous flaws with this analysis. Appellate courts generally do not decide issues that were not presented in the course of an appeal, and the existence of occasional instances of departure from that principal has resulted in the Supreme Court articulating the limited circumstances in which such extended review might be permissible, Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Connecticut, 311 Conn. 123, 128, 84 A.3d 840, 848 (2014). There is no indication in the decision that the issue ever was raised on appeal in Bellsite, which in turn leads to the often-unknowable reason why an issue might not have been raised on appeal. However, in this case, the answer is at least partially knowable, and the answer makes it clear that the plaintiffs' attempt to draw an inference from the absence of any discussion is wholly misplaced.
This court has reviewed the trial-level record in Bellsite (HHDCV065003136S) and the record reflects that on the eve of trial, the defendant had attempted to amend its answer to add special defenses, including governmental immunity (#109.00), but an objection to the belated amendment was sustained (#111.86). Therefore, the absence of any discussion of governmental immunity had absolutely nothing to do with the possible merits of the defense, but rather was a consequence of a failure to raise the issue at the trial court level in a timely manner coupled with an apparent/inferred strategic decision not to devote any effort to arguing that it had been error for the trial court to have sustained the objection to the proposed (untimely) amendment.
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=HHDCV065003136S
Although the plaintiffs vaguely state that " there are numerous and conflicting decisions concerning the application of governmental immunity" (brief at page 28), that appears to be a commentary on the difficulty one encounters in attempting to harmonize appellate decisions covering the broad range of cases in which governmental immunity arises. Somewhat more narrowly and relevantly, however, there appears to be a prevailing position in trial court decisions rejecting the identifiable victim exception to governmental immunity in non-personal-injury situations, particularly involving some form of negligence.
In recent years, the Supreme Court appears to have made efforts to address the level of perceived uncertainty or confusion, starting with Haynes v. City of Middletown, 314 Conn. 303, 312, 101 A.3d 249, 254 (2014) (following an earlier decision, 306 Conn. 471, 50 A.3d 880 (2012)); and there are a number of cases currently before the court, after the granting of certification; see, e.g. Williams v. Housing Authority of City of Bridgeport, 319 Conn. 947, 125 A.3d 528 (2015).
For example, in Bysiewicz v. City of Middletown, Superior Court, judicial district of Middlesex, Docket No. 04 4000848, (December 15, 2006, Aurigemma, J.), the plaintiff brought an action against the Middletown planning and zoning commission. The commission granted a preliminary subdivision approval application that the plaintiff claimed was in violation of the zoning regulations. The Bysiewicz court held: " In this case the plaintiff does not claim that he suffered any physical harm, let alone 'imminent' physical harm. The exception does not apply. The allegedly wrongful actions of the defendants were protected by governmental immunity since they involved the exercise of discretion." Id.; see also Vecchitto v. City of Meriden, Superior Court, judicial district of New Haven, Docket No. 05 5001311 (February 15, 2006, Licari, J.) (40 Conn.L.Rptr. 763, ) (" The identifiable person/imminent harm exception does not apply. This court is persuaded that the exception does not extend beyond situations which create a danger of personal injury. It does not extend to the loss of personal property as here"). Klonoski v. Dipietro, No. WWMCV125005742, 2013 WL 1223849, at *7 (Conn. Super. Ct. Mar. 7, 2013) [55 Conn.L.Rptr. 843, ].
" Cases where plaintiffs allege 'imminent harm' typically involve physical harm . . . The court will not expand the exception to allegations involving negligent misrepresentations in a breach of contract case. See Pane v. City of Danbury, Superior Court, judicial district of Fairfield at Bridgeport, [Docket] No. CV 97 347235S (Oct. 18, 2002, Rush, J.) (33 Conn.L.Rptr. 377, ) (refusal to extend exception to negligent infliction of emotional distress claim). Accordingly, the defendants are protected by governmental immunity from the plaintiff's claim for negligent misrepresentation." (Citations omitted.) Rosetti v. Middlefield, Superior Court, judicial district of New Haven, Docket No. CV 01-0452129 (May 11, 2004, Arnold, J.) (37 Conn.L.Rptr. 135-36); see Doe v. Bristol Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 06 5002257, (March 23, 2007, Prestley, J.) (granting defendant's motion to strike on grounds of government immunity for claim alleging negligent infliction of emotional distress arising out of alleged failure of school to prevent sexual harassment); Martin v. Town of Westport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4002886, (January 17, 2007, Tobin, J.) (granting defendant town's motion for summary judgment on grounds of government immunity for claim alleging negligent infliction of emotional distress arising out of employment termination); Escobales v. City of New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) (41 Conn.L.Rptr. 351, ) (identifiable person/imminent harm exception does not apply where plaintiff has only claimed harm to property); D'Agostino v. Town of Orange, Superior Court, judicial district of New Haven, Docket No. CV 05 4011875 (April 7, 2006, Thompson, J.) (41 Conn.L.Rptr. 270, ) (granting motion to strike on grounds of governmental immunity because 'plaintiff has not alleged that he suffered physical harm as a result of the defendants' alleged negligent acts'); Vecchitto v. City of Meriden, Superior Court, judicial district of New Haven, Docket No. CV 05 5001311 (February 15, 2006, Licari, J.) (40 Conn.L.Rptr. 763, ) (" [t]his court is persuaded that the exception does not extend beyond situations which create a danger of personal injury . . . to the loss of personal property [alleged] here"). Celotto v. Brady, No. CV065003279, 2008 WL 2313331, at *10 (Conn.Super.Ct. May 14, 2008.)
Loosely tying these principles together is Pane v. Danbury, cited in the above passage. In Pane v. City of Danbury, No. CV97347235S, 2002 WL 31466332 (Conn.Super.Ct. Oct. 18, 2002) [33 Conn.L.Rptr. 377, ], aff'd, 267 Conn. 669, 841 A.2d 684 (2004), the trial court had granted summary judgment on the count asserting negligent infliction of emotional distress, for the reasons identified in the just-cited cases--the imminent harm to foreseeable victim exception to governmental immunity generally applies only to personal injury situations. Unlike Bellsite and the inference that the plaintiffs asked the court to draw, in Pane, the Supreme Court explicitly noted that the plaintiff had abandoned the negligent infliction of emotional distress claim on appeal, that being the only claim that was not pursued. While this court cannot draw any inference as to what the Supreme Court would have done if the issue had been addressed on the merits, it appears that the plaintiff in that case perceived the issue unworthy of further pursuit. (Again, in Bellsite, the issue neither was raised on appeal nor addressed on the merits at any level.)
To the extent that the plaintiffs claim that the exception for pecuniary activities might apply, the necessary threshold question is identification of the claimed pecuniary activity. Not every activity involving money is a pecuniary activity. Defraying costs, or a project intended to reduce costs, or capital-type projects in general, are not pecuniary in nature.
In Considine v. City of Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), the court undertook a lengthy analysis of the concepts of pecuniary and proprietary functions, as precludes reliance on governmental immunity. After a discussion of the history of governmental immunity, including the enactment of § 52-557n and the prior common-law principles that were in effect at the time of the adoption of the statute, the court focused on situations involving leasing of governmental property and concluded:
Accordingly, a municipality may be held liable if there is an inextricable link or inherently close connection between its negligent act or omission and the rental of its property. Martel v. Metro. Dist. Comm'n, supra, 275 Conn. at 56, 881 A.2d 194 (municipality liable only if there is inextricable link or inherently close connection between alleged negligence and municipality's operation of proprietary function); Carta v. Norwalk, supra, 108 Conn. at 702, 145 A. 158 (municipality is responsible for its negligent acts or omissions in connection with the property rented). (Internal quotation marks, omitted.) 279 Conn. at 850.
As recognized by the parties, the defendant here insisted that the agreement relating to use of school property/premises not be in terms of a lease but rather a license. Either characterization allows the use of Board-controlled property by the plaintiff, so the distinction may be of limited consequence.
A more substantial distinction is that the claim of the plaintiffs does not relate to property (use of property) at all, but rather to negotiations. This may be an offshoot of the discussion, above, related to the inapplicability of the identifiable victim exception to non-personal-injury situations--without the anchor of actual property or an actual activity, how can the process of negotiations be characterized as proprietary or pecuniary?
Applying this exception to commercial-type negotiations has serious public policy implications, potentially involving the concerns expressed in Lawrence Brunoli, supra, relating to the perils of excessive litigation in connection with public contracts.
Finally, the court must note the absence of any evidence demonstrating the claimed pecuniary nature of the activity. Although it may be contained in the voluminous submission of the plaintiff, the plaintiff has not identified, in its brief, the aspects of the project agreements that might warrant treatment of the project as pecuniary or proprietary in nature. On occasion, the plaintiffs do refer to cost savings to the Board (and indirectly the Town) from the project, but the plaintiffs have not cited any authority, nor provided any analysis, suggesting that reducing the cost of providing municipal services--and since the project centers on schools, presumptively providing education to students is the service in question, a quintessential governmental function (with State-function overtones; Cheshire v. McKenney, supra ))--can constitute a proprietary or pecuniary function. To the contrary, imposing a modest user-type charge for municipal services, in an effort to offset costs, is generally deemed not to result in characterization of the activity as proprietary or pecuniary, and the current situation does not involve any charge to any user.
According to the version of the PPA attached to the defendant's submission, the agreement is structured in a manner having the Board as purchaser of the electric output of the solar installation, at a fixed cost per kilowatt-hour. The plaintiffs do not explain how a contract for the purchase of a utility service is or can be a proprietary activity within the context of governmental immunity.
For all of these reasons, the defendant is entitled to judgment on the claim of negligent misrepresentation.
F. Tortious interference
The plaintiffs assert the existence of tortious interference with contractual relationships, but have not clearly identified the tortious conduct or the contractual relationships as to which there was knowing interference. The treatment of this claim, against this defendant, fails to identify any specific factual issue that might be material to this claim.
The plaintiffs' actual argument is brief enough to be quoted in its entirety. After reciting the legal principles and guidelines applicable, the plaintiffs state:
All of the aforementioned acts are indicative of tortious interference in the above captioned matter. At the very best, the BOE staff attempted to ignore and/or circumvent the Town process for approval of the project. At worst, the BOE staff negligently misrepresented the Town process for approval of the project, and allowed the Town to change the process for approval mid-project to the detriment of Steephill. Accordingly, the actions of the BOE staff, taken in conjunction with the actions of the First Selectwoman and the Town Building Committee raise a genuine issue of material fact.
With the exception of the reference to negligent misrepresentation, the entirety of the claim, as directed to the Board, appears to be based on the procedures for getting final approvals and the related failure to obtain final approvals. Tortious interference presumes wrongful conduct, and the plaintiffs do not attempt to explain the possible wrongfulness--in a tortious sense--of arguable-bumbling in terms of identifying the proper procedure for governmental approvals. There is no evidence or even claim proffered by the plaintiffs as to wrongfulness in the claimed inability to determine the proper approval process. (Are the plaintiffs claiming some vested right in a particular procedure?) The court has rejected the claim that there was a binding agreement, and the failure to reach an agreement, in and of itself, is not wrongful (absent a ministerial duty to do so).
Part of the claim is directed to the conduct of the First Selectwoman and the Town Building Committee--there is no explanation as to how or why the Board might be liable for the alleged tortious conduct of either the First Selectwoman or the Town Building Committee.
Additionally, tortious interference requires interference with the plaintiffs' contractual relationship with a third party; a party's own failure to enter into a contract, for whatever reason, is not a basis for assertion of a tortious interference; Selby v. Pelletier, 1 Conn.App. 320, 327 n.4, 472 A.2d 1285, 1289 (1984). There is no evidence that the Board itself acted in bad faith; Multi-Service Contractors, Inc. v. Town of Vernon, 193 Conn. 446, 451, 477 A.2d 653, 655 (1984), a possible if not established exception to the rule.
In Multi-Service, the issue of bad faith focused on claims of liability directed to individual agents and representatives but not to the municipality itself. (" The trial court held that the individual defendants' motion for summary judgment should be granted because there can be no intentional interference with contractual relations by someone who is directly or indirectly a party to the contracts." 193 Conn. 451.) The court seemed to have allowed for bad faith as a possible means for characterizing otherwise-agents as third parties to the contractual relationship, something not possible with respect to the municipal entity itself. There was no suggestion that the municipality itself might have been liable, even if agents had acted with bad faith, but even if that were allowable in principle, there is no evidence here of bad faith by the Weston Board of Education itself.
Finally, although negligent misrepresentation might constitute sufficiently wrongful or tortious conduct for purposes of a claim such as this, the court has rejected the existence of any actionable misrepresentations by or on behalf of the Board. The claimed misrepresentations all relate to the approval process and similar legal issues, or optimistic statements relating to the likelihood of consummating a deal. Nothing potentially tortious/actionable has been identified.
For all of these reasons, summary judgment as to the tortious interference with contract claim is granted.
II. Town of Weston and Donald Gary
A. Unjust Enrichment
The plaintiffs claim that the Town was unjustly enriched. The court adopts the analysis above, relating to the Board. Given the potential if not actual quasi-internal battles for control over use of school property relating to non-educational functions; see, e.g. Canzonetti v. City of New Britain, 147 Conn. 478, 162 A.2d 695 (1960), the court cannot conclude, as a matter of law, that if there is any unjust enrichment--an outstanding issue of fact--the enrichment is solely to the benefit of the Town or the Board. The question of actual benefit/enrichment, and if so which entity was actually benefited, remain as factual issues. The motion must be denied in this regard.
B. Negligent Misrepresentation
The court has discussed most of the applicable principles and facts, in connection with the claim directed to the Board. The plaintiffs' arguments relating to Town misrepresentation focus almost exclusively on the existence of allegedly-untrue statements, losing sight of the need to connect claimed misrepresentations to other elements of the cause of action. The First Selectperson and/or Mr. Gary may have made groundless and reprehensible statements and accusations--but this is not a defamation action but rather a claim of misrepresentation (and there is no basis for holding the Town responsible for statements of Mr. Gary).
Actionable misrepresentation requires reasonable reliance by the injured party, and there is no suggestion much less evidence that the plaintiffs, in any way, relied upon the statements detailed in this portion of the plaintiffs' opposition to summary judgment. The statements may have harmed the plaintiffs in a direct sense, but that is not this claim. The last paragraph on page 14, essentially everything on page 15, and concluding with the first full paragraph on page 16 of the plaintiffs' brief, contain a laundry list of claimed improper statements--but none of that recitation has anything to do with inducing reliance-based conduct by the plaintiffs to the detriment of the plaintiffs.
As already mentioned, the proper procedure for approval, although seemingly having a factual component, is a legal issue, especially as to governmental entities. Individuals may think they know the procedure--but that is an opinion as to legal requirements. Fennell v. Hartford, 238 Conn. 809, 681 A.2d 934 (1996) made it clear that past practices, publications, etc., all factual in nature, all have no bearing on the legal requirements for contractual-type behaviors; see, also, Keeney, supra, 237 Conn. 145-54, where approvals by town officials including the First Selectman, outside the proper/required procedures, were of no binding effect, even as to a purported agreement with the State.
The plaintiffs, then, have not identified any factual misrepresentations on which they claim to have relied, sufficient to create/identify a material issue of fact. The Town, then, is entitled to summary judgment on this issue.
The analysis of governmental immunity and the corresponding inapplicability of the identifiable victim exception (and the inapplicability of a claim of proprietary activity), as discussed in the context of claims against the Board, also applies to the Town.
C. Tortious interference--Town of Weston
Again, the plaintiffs spend a great deal of time reviewing the events of June 2013 and into the summer, all relating to the failure to reach a final agreement for the solar project. The failure to consummate a contract does not constitute tortious interference with related third-party contracts that were dependent on the solar project going forward. The approval process, or misunderstandings or misapprehensions as to the process, are not tortious. Further, as identified by the defendants, there is no suggestion that whatever was done--even if improperly--was directed to the plaintiffs' " other" contractual relationships. Even assuming an intent to stop the project, that intent was directed to the contractual relationship between the defendants and the plaintiffs, not to any actual or potential relationship between the plaintiffs and other contract partners.
To the extent that the claim is directed to the project itself, aside from the lack of tortious quality to the Town's actions, as discussed above, tortious interference requires interference with a third-party relationship--is the Town sufficiently legally-distinct from the Board to permit--conceptually--a claim that a municipality tortuously interfered with a contractual relationship involving the local board of education?
Control of schools. Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter. General Statutes § 10-240.See, also, Town of Cheshire v. McKenney, 182 Conn. 253, 438 A.2d 88 (1980).
A board of education may be autonomous in large measure, and often may be at odds with the local municipality, but the statutory linkage is such that the court cannot treat the Town of Weston as the equivalent of a stranger to the prospective contract between the plaintiffs and the Weston Board of Education, especially when the claimed interference is based on claims relating to needed approval processes. Recognizing that there might be situations that are sufficiently extreme as to justify consideration of the proposition that a town can tortiously interfere with contractual relationships of its board of education, disputes relating to control and approval processes, as are present here, are inherently political and internal.
The plaintiffs incorporate their arguments relating to proprietary functions as an exception to governmental immunity, except that this is not a negligence claim. To the extent that the plaintiffs may be relying on the claim of negligent misrepresentation for the tortious component of tortious interference, the court has determined that the plaintiffs have not articulated a factual issue sufficient to keep the negligent misrepresentation claim alive, and again, the focus in negligent misrepresentation is on the plaintiffs' reliance (something of an internal focus) whereas tortious interference looks outward, on the impact on the plaintiffs' other contractual relationships.
It is possible that these references are in response to the defendant Town's invocation of General Statutes § 52-557n(a)(2)(A)--" Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct." The plaintiffs' attempt to counter with a claim of proprietary activity--aside from being inapplicable as discussed earlier--is misdirected. The proprietary exception is applicable to claims of negligence, where there is the potential for municipal vicarious liability. As a matter of common law in Connecticut and as incorporated into the quoted statutory provision, however, there can be no vicarious liability for more aggravated misconduct, conduct that can be characterized as " criminal conduct, fraud, actual malice or wilful misconduct." The possibility of vicarious liability for discretionary negligence in connection with proprietary activities has no relevance to a claim of vicarious liability for aggravated misconduct--there can be no vicarious liability, regardless of the nature of the activity. (In policy terms, this is at least because aggravated misconduct presumptively is outside the scope of authorized conduct on behalf of the municipality.)
Prior to enactment of § 52-557n, General Statutes § 7-465 was the primary vehicle for imposing liability on a municipality for negligence of employees. The statute required a municipality to indemnify employees for harm caused by employees' conduct (and rendered virtually superfluous after Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181 (2001); aff'd, 263 Conn. 22, 818 A.2d 37 (2003)), contained an exclusion for " the result of any wilful or wanton act of such employee in the discharge of such duty, " thereby effectively limiting liability to negligence (with a specific recognition of liability for civil rights claims). Section 7-101a provided (and still provides) for indemnification for a broader range of municipal actors; subsection (a) requires indemnification for negligence and subsection (b) requires a defense but not indemnification in connection with claims of more egregious misconduct, and allows for a recovery of the cost of defense in the event more egregious misconduct is proven.
Again, there is no proprietary activity that has been identified, and there is no basis for imputing more-than-negligent conduct of an individual to the Town for purposes of any claim of liability.
For all of these reasons, the motion is granted as to the claim of tortious interference by the Town of Weston.
D. Tortious Interference--Mr. Gary
The situation with respect to defendant Gary is distinct from the situation as to the Town or Board. Mr. Gary is alleged to have been a third party, unrelated to the parties to the contracts identified in the complaint (the project and ancillary agreements). The need for third-party status is satisfied, such that an essential element of the cause of action is not missing, as a matter of law or undisputed fact.
To the extent that the defendant argues that there was no contract with which the defendant allegedly interfered, tortious interference does not require an actual/existing contract; it can also apply to conduct that interferes with contract formation. The defendant's attempted reliance on the absence of a contract is misplaced.
The complaint alleges that this defendant interfered with the plaintiffs' contractual relationships with the other defendants--a clear reference to the project itself (¶ ¶ 80-82). The plaintiffs do refer to third-party contracts, but the third-party contracts are alleged to have been lost as a consequence of that behavior (¶ 83). Whether the defendant knew of those contracts may be an issue as to liability for interference with those contracts, but the defendant certainly knew of the proposed contractual relationship between the Board and the plaintiffs and tortious interference with that relationship is (can be) actionable.
The defendant has not conclusively refuted the existence of his negative statements and other conduct that could have discouraged the Board and/or Town (or their respective officials) from finalizing a project with the plaintiffs; he has not conclusively refuted that he knew of the plaintiffs' project proposals; he has not conclusively refuted his status as a proponent of a different project that could not co-exist with the plaintiffs' project, thereby establishing a motive for interference; and he has not conclusively refuted a causative link between his conduct and the ultimate failure of the project. (By " conclusively, " the court is referring to the absence of a material issue of fact and the resulting legal entitlement to judgment.)
Summary judgment is not concerned with the parameters of a possible recovery or the likelihood of a recovery, but rather whether the plaintiffs might be able to prove a right of recovery under that particular theory of liability or count. The defendant has not established an inability of the plaintiffs to recover on this claim. The defendant has not established, to the requisite level of certainty (no material issue of fact) that he did not interfere with any of the plaintiffs' contractual relationships. The motion for summary judgment, as to this claim, must be denied.
Conclusion
The plaintiffs' frustration with a long and ultimately unproductive process--a process that started with cause for optimism--may be understandable, but the court is constrained by legal principles. A breach of contract claim presupposes existence of a contract, an enforceable agreement, and however close the parties may have come, there is no dispute that required elements never were satisfied. Even assuming the signing of documents by Ms. Keating, with the approval of the Board, constituted a potentially-binding commitment to whatever agreed terms had been reached as of June 28, 2013, the contract documents were not in final form--they needed to be approved by the Board's attorneys, they needed final approval by the plaintiffs, they needed final terms as to start and finish dates, they were incomplete as to guaranteed power production, and even if the defendant had " signed" the documents, the plaintiffs acknowledged that they never had signed anything.
Somewhat oversimplifying by leaving out additional flaws, the promissory estoppel and negligent misrepresentation claims require an element of reasonable reliance, and the plaintiffs knew that there could be no final contract without final approvals (and there could be no enforceable contract without execution by the parties) such that there was no basis for reasonable reliance by the plaintiffs on anything, prior to actual final approvals. The negligent misrepresentation claim, in particular, suffers from other flaws that are established without material issue of fact, including lack of factual statements and the inapplicability of the identifiable victim exception to governmental immunity in connection with non-personal-injury claims of negligent conduct.
Tortious interference likewise falls prey to governmental immunity on a different basis--there is no vicarious liability under § 52-557n for aggravated forms of misconduct and neither the identifiable victim exception nor the proprietary function exception to immunity applies to more egregious forms of misconduct.
The Board has not established the absence of a material issue of fact or conclusive legal impediment to the claims of implied (in fact) contract or unjust enrichment--the claims may be limited in scope to benefits actually received or may be more expansive, but the viability of the claims is all that is required to be recognized at this juncture.
The claims against the Town follow the same pattern, with only slightly modified analyses.
The claims against Mr. Gary are distinct. The tortious interference claim cannot be summarily resolved (unlike the claims directed to the Board and Town). Mr. Gary was a true third party to any contractual relationship of the plaintiffs. He certainly knew of the prospective contractual relationship between the plaintiffs and the Board, and the evidence establishes at least a material issue of fact as to whether his conduct might have constituted tortious interference. (Causation and the extent of damages are likely jury issues.)
For all of these reasons, then, the motion for summary judgment is granted as to the First, Third, Fifth and Sixth Counts, all directed to the Weston Board of Education; and granted as to the Eighth and Ninth Counts directed to the Town of Weston. The motion is denied as to the Second and Fourth Counts directed to the Board; the Seventh Count directed to the Town; and the Tenth Count directed to Donald Gary.