Opinion
AANCV156019330S
06-09-2016
J. Sebastian Barneby et al. v. New England School of Montessori, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO STRIKE
Barry K. Stevens, J.
STATEMENT OF THE CASE
On September 25, 2015, the plaintiffs, J. Sebastian Barneby, Erin Cummins (plaintiff parents), and Tristan Cummins (Tristan), PPA J. Sebastian Barneby, filed a nine-count complaint against the defendant, New England School of Montessori, LLC. Pending before the court is the defendant's motion to strike. The complaint alleges the following facts.
The plaintiff parents enrolled their three-year-old son Tristan in the defendant's school, a program that was advertised as a school offering opportunities beyond a traditional daycare. Before enrollment, the plaintiff parents informed the defendant that their son was very energetic and required additional physical activity. The defendant's personnel assured the plaintiff parents that energetic children were welcomed and that the defendant's toddler program would be perfect for Tristan. In February 2014, the plaintiff parents executed a contract with the defendant. Under the contract, Tristan would be enrolled in the defendant's full-time program from September 2014, through January 2015, Monday through Friday from 9:00 a.m. to 3:30 p.m. The fee was $6, 930. The plaintiff parents paid the defendant a $500 deposit and they paid $6, 430 on July 11, 2014. Relying on this enrollment in the defendant's school, the plaintiff parents notified his existing daycare that Tristan would not be returning. Tristan started attending the defendant's school on September 3, 2014.
While attending the defendant's school, Tristan's teacher expressed concerns about his behavior to the plaintiff parents, who decided to have Tristan evaluated. The plaintiff parents notified the defendant school that Tristan was being tested and later informed the defendant on October 3, 2014, that the evaluation revealed no clinical problems and did not require medication. The defendant then suggested that the plaintiff parents keep Tristan " out of 'school' one day per week and take him rock climbing." Compl., ¶ 19. The plaintiff parents informed the defendant school that their suggestion was not an option due to employment obligations, and suggested the defendant school implement ways to keep Tristan physically engaged.
On October 6, 2014, Tristan was picked up from school and the plaintiff parents found inside his bag a note saying that " Tristan was no longer welcome at the 'school' during afternoons commencing on October 20, 2014." Compl., ¶ 20. The plaintiff parents informed the defendant school that their work schedules did not allow Tristan to be home in the afternoons and if the defendant school would not honor its agreed to full-day services for Tristan, then they would have to withdraw Tristan from the school. The plaintiff parents subsequently withdrew Tristan after the defendant agreed to provide a full refund.
The complaint asserts nine counts respectively alleging: breach of contract; unjust enrichment; promissory estoppel; fraudulent misrepresentation; negligent misrepresentation; violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b (CUTPA); intentional infliction of emotional distress; rescission; and breach of contract by Tristan as a third-party beneficiary. On December 21, 2015, the defendant filed a motion to strike. The motion first seeks to strike all the counts, except for count three alleging promissory estoppel, on the ground that these counts assert claims for educational malpractice not cognizable under Connecticut law. Alternatively, the defendant seeks to strike counts three (promissory estoppel), four (fraudulent misrepresentation), five (negligent misrepresentation), six (CUTPA), seven (intentional infliction of emotional distress), and eight (rescission) for failing to sufficiently state claims upon which relief may be granted. The plaintiffs filed an objection and a memorandum in opposition to the defendant's motion to strike on January 20, 2016. On February 24, 2016, the defendant filed a reply memorandum. The plaintiffs filed a supplemental memorandum in opposition on February 26, 2016. This matter was heard at the short calendar on February 29, 2016. The motion to strike is granted only as to the first count alleging breach of contract, the second count alleging unjust enrichment and the seventh count alleging intentional infliction of emotional distress.
DISCUSSION
I
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
II
A
The defendant moves to strike the first count on the complaint (by the parent plaintiffs alleging breach of contract) and the ninth count of the complaint (by Tristan as a third-party beneficiary of the contract) on the ground that these counts are legally deficient because they contest the quality of the educational services provided by the defendant. This issue is controlled by the Supreme Court's decision in Gupta v. New Britain Hosp., 239 Conn. 574, 687 A.2d 111 (1996). In Gupta, the court declined to recognize claims for educational malpractice. " Where the essence of the complaint is that [an educational institution] breached its agreement by failing to provide an effective education, the court is . . . asked to evaluate the course of instruction [and] called upon to review the soundness of the method of teaching that has been adopted by [that] educational institution . . . This is a project that the judiciary is ill equipped to undertake . . . In reality, a claim [of 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 . . . 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." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Gupta v. New Britain Hosp., supra, 239 Conn. 590-91.
The Supreme Court qualified its decision in Gupta as follows: " There are . . . at least two situations wherein courts will entertain a cause of action for institutional breach of a contract for educational services. 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 Hosp., supra, 239 Conn. 592-93.
Paragraph twenty-two of the complaint's first and ninth counts allege that " the defendant has breached its contract with the plaintiff by falling to provide quality educational opportunities to Tristan in accordance with its contract with the plaintiff parents and by retaining the funds paid by the plaintiff parents." The court agrees with the defendant that by contesting the " quality educational opportunities" of the school, the plaintiffs are asserting a claim for educational malpractice precluded by Gupta .
The plaintiffs' arguments to the contrary are rejected. According to the plaintiffs they are claiming that the defendant is not a school but a " glorified daycare" for which the Gupta holding is inapplicable. The court rejects such sophistry. Based on the specific allegations of these counts, an adjudication of the plaintiffs' claim that the defendant is not a " school" but a " glorified daycare, " would require the court to engage in a substantive review of the reasonableness, adequacy or quality of the defendant's educational program implicating the very same policy concerns articulated in Gupta . See Talbot v. Kirkup, Superior Court, judicial district of New London, Docket No. CV-551986-S, (September 20, 2000, Corradino, J.).
The plaintiffs also argue that rather than asserting an educational malpractice claim, they are only contesting the defendant's failure to provide the afternoon daycare services required under the contract. The problem with this argument is that this more narrow claim is not what is asserted in paragraph twenty-two of these counts. As previously stated, under this paragraph the plaintiffs claim that the defendant failed to provide the " quality educational opportunities" required under the parties' contract. In ruling on a motion to strike, the court must construe the allegations of the complaint broadly in favor of the plaintiffs. This procedural rule of construction, however, does not permit the court to ignore or rewrite the statements explicitly asserted in the pleading. If the plaintiffs intend or desire to assert the claim as presented in their objection, they have leave to plead over as provided under the rules of practice. Practice Book § 10-44.
B
The second count incorporates all of the allegations of the first count and asserts that " the defendants have been unjustly enriched at the expense of the plaintiffs." Compl., Count 2, ¶ 26. As pleaded, the second count is premised on the defendant being unjustly enriched because the plaintiffs were deprived of the " quality educational opportunities" expected under the parties' contract. The court agrees with the defendant that this second count must be stricken based on the holding and reasoning of Gupta .
The defendant does not raise, and thus the court does not consider, whether the plaintiffs have properly pleaded breach of contract while simultaneously pleading unjust enrichment and promissory estoppel in the alternative. See William Raveis Real Estate v. Cendant Mobility Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-4002709-S, (December 6, 2005, Stevens, J.) (" [T]he plaintiff may plead unjust enrichment in the alternative, but this is not accomplished by incorporating into this count all the allegations of an express contract. Such a complaint does not involve alternative pleading, but involves legally inconsistent pleading"); see generally, Corrado v. Hofmiller, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-5010880-S, (March 15, 2016, Stevens, J.) (as equitable remedies, claims for unjust enrichment and promissory estoppel are unavailable when evidence establishes that they emanate from a valid, enforceable contract).
C
The third count of the complaint alleging promissory estoppel raises different issues than the counts just discussed because the third count asserts an additional allegation. Paragraph twenty-five alleges the following: " The plaintiffs justifiably relied to their detriment upon a promise made by the duly authorized representative of the defendant with regard to a refund of their payments. The plaintiffs maintained their course of action in withdrawing Tristan from Montessori in reliance upon such promise." This third count does not contest the educational services of the school. This count concerns the defendant's promise to refund the plaintiffs' payments and the plaintiffs' detrimental reliance on this promise. The court rejects the defendant's arguments that this claim is precluded by Gupta or fails to state the elements of promissory estoppel.
" [A] claim [for promissory estoppel] requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Abbott Terrace Health Center, Inc. v. Parawich, 120 Conn.App. 78, 86-87, 990 A.2d 1267 (2010).
D
The fourth count alleging fraudulent misrepresentation and the fifth count alleging negligent misrepresentation also assert an additional allegation: " The defendant intentionally and knowingly misrepresented in [its] name and advertising materials that their facility is a school of an elite nature, thereby enabling them to charge and receive high fees for attendance. In fact, the facility at the time of Tristan's attendance was not a 'school' in that the requisite licenses and accreditation for a school had not been obtained. The facility was essentially a glorified daycare." Compl., Count 4, ¶ 25. These counts further assert, among other things, that the plaintiffs relied on this misrepresentation to their detriment. The matters that must be adjudicated under these counts are whether the defendant was required to have " licenses" and " accreditation" to represent itself as a " school, " and whether the defendant either fraudulently or negligently made this representation in advertising materials without having the requisite " licenses" and " accreditation." As alleged, these claims do not require the court to consider the quality or adequacy of the educational services provided by the school. Thus, the court rejects the defendant's arguments that these counts implicate Gupta concerns or fail to state the elements for fraudulent or negligent misrepresentation.
" The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement was made to induce the plaintiff to act; and (4) the plaintiff acted on the false representation to [its] detriment." (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 164-65, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).
" [A]n action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).
E
The sixth count alleges violation of CUTPA. The sixth count incorporates the allegations of the first count alleging breach of contract and the fourth count alleging fraudulent misrepresentation.
CUTPA 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." General Statutes § 42-110b(a). " It is well settled that in determining whether a practice violates CUTPA [our Supreme Court has] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Footnote omitted; internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 484, 871 A.2d 981 (2005). Further, our Supreme Court has stated that " [i]n the absence of aggravating unscrupulous conduct, mere incompetence does not by itself mandate a trial court to find a CUTPA violation." (Footnote omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 229, 990 A.2d 326 (2010).
The defendant again argues that the plaintiffs' CUTPA claim fails because it is based on educational malpractice. The defendant also argues that the CUTPA claim should be stricken because it does not sufficiently allege that the defendant's actions were immoral or unscrupulous. The court disagrees. Although the CUTPA count incorporates the first count's claim alleging educational malpractice, this count also incorporates the plaintiffs' fraudulent misrepresentation count. As previously discussed, the plaintiffs allege that the defendant knowingly and intentionally made misrepresentations in their advertising materials in order to charge and receive higher fees for attendance. The court has found that the allegations of the fourth count are sufficient to assert fraudulent misrepresentation and the court cannot say that as a matter of law these allegations are insufficient to state a claim under CUTPA. " [A]lthough [c]onduct that might be actionable under CUTPA may not rise to a level sufficient to invoke tort liability . . . [t]he reverse of that proposition is seldom true." (Citation omitted; internal quotation marks omitted). Landmark Investment Group, LLC v. CALCO Construction and Development Co., 318 Conn. 847, 881, 124 A.3d 847 (2015).
F
The seventh count alleges intentional infliction of emotional distress. This count incorporates the allegations of the counts alleging breach of contract and fraud, and adds the following allegation: " The defendant knew or should have known that the plaintiffs were extremely concerned and selective about educational opportunities for their children, had spent considerable time and effort in selecting a program of development for Tristan, and had arranged their schedules around a full-time program." Compl., Count 7, ¶ 29. This count further asserts the legal conclusion that " the actions of the defendant, as aforesaid, were shocking and extreme and constitute outrageous conduct and [was] conduct intentionally or in reckless disregard for the consequences to the plaintiffs." Id., ¶ 30.
" In order for the plaintiff to prevail in a case for liability . . . [for intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . Thus, [i]t is the intent to cause injury that is the gravamen of the tort . . ." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). " For the tort of intentional infliction of emotional distress to be established . . . the plaintiff must allege and prove conduct considerably more egregious than that experienced in the rough and tumble of everyday life . . ." Whelan v. Whelan, 41 Conn.Supp. 519, 522, 588 A.2d 251 (1991).
The defendant claims that the plaintiffs fail to allege sufficiently a cause of action for intentional infliction of emotional distress because they fail to allege severe and outrageous conduct by the defendant. The plaintiffs counter that the defendant's conduct is sufficiently outrageous based on the manner in which the plaintiffs were attracted to the school and the canceling of Tristan's afternoon session by way of a note left in his bag. The court agrees with the defendant.
The defendant's actions as alleged by the plaintiffs may be wrongful or even unfair and unscrupulous, but as a matter of law they do not rise to the level of the extreme or outrageous conduct that Connecticut courts have held to be associated with intentional infliction of emotional distress exceeding all bounds tolerated by society. See Dollard v. Board of Education, 63 Conn.App. 550, 554, 777 A.2d 714 (2001) (" Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress" [citation omitted; internal quotation marks omitted]).
G
The eighth count seeks rescission of the parties' contract. This count also incorporates all the allegations of the complaint's contract and fraud counts. " Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract. A condition precedent to rescission is the offer to restore the other party to its former condition as nearly as possible . . . The very idea of rescinding a contract implies that what has been parted with shall be restored on both sides, and hence the general rule, which is to be reasonably applied . . . is that a party who wishes to rescind a contract must place the opposite party in status quo." (Citation omitted; internal quotation marks omitted.) Metcalfe v. Talarski, 213 Conn. 145, 153, 567 A.2d 1148 (1989). " Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract." (Internal quotation marks omitted.) Paul Revere Life Ins. Co. v. Pastena, 52 Conn.App. 318, 325, 725 A.2d 996, cert. denied, 248 Conn. 917, 734 A.2d 567 (1999).
If the eighth count solely sought rescission based on educational malpractice, the court would agree with the defendant that the count would be legally deficient under Gupta v. New Britain Hosp., supra, 239 Conn. 574. This count, however, also claims that the plaintiffs were induced to enter into the contract based on fraudulent misrepresentations, and as the court has explained, the plaintiffs' fraudulent misrepresentation claim is sufficient to withstand the defendant's motion to strike. Thus, the court concludes that the motion to strike the complaint's eighth count seeking rescission of the contract based on fraudulent misrepresentation must be denied.
The court agrees with the majority of the trial courts holding that only an entire claim, not a portion of a count, may be subject to a motion to strike, so that if a part of a count is viable, the motion to strike that count must be denied. See Ellison v. Gerrity, Superior Court, judicial district of New London, Docket No. CV-14-6021916-S, (June 30, 2015, Cole-Chu, J.) (" If any part of a count is sufficient, it is neither necessary nor appropriate to strike superfluous allegations"); Ames v. East Brook F, LLC, Superior Court, judicial district of New London, Docket No. CV-13-6016325-S (December 17, 2013, Cole-Chu, J.) (57 Conn.L.Rptr. 329, ) (" It is rarely appropriate to strike only a part of a claim . . . Count Four is sufficient if some portion of the count supports a recklessness claim"); Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-126014260-S (October 31, 2012, Agati, J.) (54 Conn.L.Rptr. 887, ) (" [T]his court agrees with the majority of the trial courts that only an entire claim, not portions of a count, may be subject to a motion to strike"); Ahmad v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X-2-CV--4--183725-S (September 29, 2004, Schuman, J.) (38 Conn.L.Rptr. 238, ), aff'd, 104 Conn.App. 380, 933 A.2d 1208 (2007) (" The court will not grant a " surgical" motion to strike that seeks to eliminate only part of a count or request for relief"); Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV--2--175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, ) (" The plaintiff is correct in her contention that '[i]f part of a count is viable, it is not subject to a motion to strike'").
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted only as to counts one, two and seven of the complaint and is otherwise denied.