Opinion
No. FST CV 05-4006295 S
September 13, 2005
MEMORANDUM OF DECISION ON PLAINTIFF'S TEMPORARY INJUNCTION DATED AUGUST 11, 2005
The court finds the following facts after a hearing on September 6, 2005.
1. The Second Taxing District of the City of Norwalk is a unit of local government who owns and operates a municipal electric utility as well as a water department. (Hiscock testimony.)
2. Sometime prior to March 15, 2002, the Board of Commissioners of the Second Taxing District, who are elected by the voters of the B-1 electric district, authorized the District's General Manager, John Hiscock, to make a bid to purchase the property located at 85 Martin Luther King Boulevard, Norwalk, Connecticut (hereinafter "the Site"). (Hiscock testimony.)
3. The Second Taxing District was, and remains, interested in acquiring the Site. (Hiscock testimony.)
4. Given its interest in the Site, the Second Taxing District hired Martin Pirnie, Inc., to prepare an environmental study of the Site (hereinafter "Pirnie report"). (Hiscoc testimony; Plaintiff's Exhibit K.)
5. The Pirnie report contains information, which is confidential, and commercially valuable to the Second Taxing District's electric utility. (Hiscock testimony.)
6. On March 15, 2002, the Second Taxing District, through its attorneys, made an offer to Jules Lang, the owner's agent, for an option to purchase the Site. (Plaintiff's Exhibit K.)
7. The offer was subsequently withdrawn due to the fact that "ISO," the Independent System Operator-New England, Inc., decided not to partner with the Second Taxing District on the proposed project. (Hiscock testimony; Plaintiff's Exhibit R.)
8. The authority to bid on the purchase of the Site given to the District's General Manager has never been withdrawn or revoked. (Hiscock testimony.)
9. The proceedings, which the Second Taxing District initiated prior to bidding on an option to purchase the Site, have not been terminated or abandoned. (Hiscock testimony.)
10. Mr. Hiscock discusses the District's desire to acquire the Site to be used in connection with its power plant operation with the Board of Commissioners a few times each year. (Hiscock testimony.)
11. Over the last three years, in its quest to operate a power plant and acquire the Site, the Second Taxing District has obtained approval from the Connecticut Siting Council to operate a power plant and has applied to the Connecticut Department of Environmental Protection ("DEP") for its approval. (Hiscock testimony.) The District has spent over $800,000 to date, including the cost of the Pirnie report, in connection with its desire to operate a power plant and acquire the Site.
12. In addition, the District has continually looked for a partner to join with it in the proposed power plant project and recently obtained approval from the Connecticut Municipal Electric Energy Coop ("CMEEC") for the appropriation of funds to review cost estimates associated with the proposed power plant.
13. Once all approvals are obtained to operate the power plant, the District will finish the process of acquiring the Site, which it began years ago. In particular, it will bid on the purchase of the Site from the then current owner and if the bid is not accepted, it will consider acquiring the property by eminent domain. (Hiscock testimony.)
14. The plaintiff, William Cohen, is a commercial real estate broker who is aware that it generally takes between six and eight months to obtain an environmental study. (Cohen testimony.)
15. Earlier this year, Mr. Cohen became interested in acquiring the 1890s brick building located at 85 Martin Luther King Boulevard, Norwalk, Connecticut, which had been vacant for at least fifteen (15) years ("the Site"). (Cohen testimony.)
16. He hired Richard Stumbo, President of Environmental Maintenance Contractors, Inc. to research the property for him. At that tine, Mr. Cohen was aware that the Second Taxing District had already had an environmental study of the Site prepared. (Cohen testimony.)
17. On July 12, 2005, Mr. Stumbo requested, under the Freedom of Information Act ("FOIA") all information the Second Taxing District had regarding the Site. (Cohen testimony; Plaintiff's Ex. B.)
18. John Hiscock, the General Manager of the Second Taxing District, denied Mr. Stumbo's request on July 14, 2005 on the grounds that the information requested was exempt under Section 1-210(7) of the Connecticut General Statutes. (Plaintiff's Exhibit C.)
19. To the best of Mr. Hiscock's knowledge, no appeal from that denial was taken. (Hiscock testimony.)
20. Prior to July 18, 2005, Mr. Cohen was aware that the request for information relating to the Site, particularly, the environmental study prepared by Malcolm Pirnie, Inc., for the Second Taxing District, had been denied on the grounds that the information requested was exempt from disclosure under the FOIA and that it generally takes up to 8 months to obtain an environmental study. (Cohen testimony.)
21. On July 18, 2005, he voluntarily chose to enter into a contract with the owner of the Site to purchase the property, agreeing that he would complete his due diligence within two (2) months and therefore, has until September 18, 2005 to complete all studies of the Site. (Cohen testimony; Plaintiff's Exhibit A.)
22. Cohen has the "absolute right in [his] sole discretion to terminate th[e] Agreement if he is not satisfied, for any reason or for no reason, with the Due Diligence Review and [if he does,] the Escrow Agent shall return the Deposit to the [him] . . ." (Cohen testimony; Plaintiff's Exhibit A.)
23. Cohen can also go forward with the purchase of the property without the Pirnie report. (Cohen testimony.)
24. Cohen claims that he has suffered monetary damages in the nature of consultant fees, interest, and the costs of structural engineers and that he is having difficulty obtaining financing, all as a result of the District's failure to release the Pirnie report to him. (Cohen testimony.)
25. There is nothing preventing Mr. Cohen from attempting to negotiate the terms of the purchase and sale agreement. (Cohen testimony.)
26. William Cohen has not attempted to seek an extension of time from the seller of the Site to allow him additional time to obtain an environmental study. (Cohen testimony.)
II. Law
In order to obtain a temporary injunction, the plaintiff must demonstrate the following: 1) likelihood of success in the merits; 2) imminent, substantial and irreparable injury; 3) lack of an adequate remedy at law; and 4) that a balancing of the equities favors the granting of the injunction. Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 457-58 (1985). Since the plaintiff herein is seeking a mandatory injunction, his burden is even greater. He "must meet a higher standard than in the ordinary case by showing `clearly' that he is entitled to relief on that `extreme or very serious damages' will result from a denial of the injunction." Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir. 1997). See Kent Literary Club of Wesleyan University v. Whaley, 2004 WL 2361686, 3 (Conn.Super.) "This heightened showing is also required where the issuance of the injunction would provide the movant with substantially all the relief he or she seeks and where the relief could not be undone, even if the non-moving party later prevails at trial." Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650 (2004) in deciding that a permanent mandatory injunction should not issue, "[m]andatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances." 42 Am.Jur.2d 560, Injunctions Section 5 (2000).
"A mandatory injunction . . . is a court order commanding a party to perform an act." Tomasso Bros., Inc. v. October Twenty-Four, 230 Conn. 641 (1994). In this case, the plaintiff has requested that the court order "the defendant to refrain from claiming that it has a proceeding or transaction which has not been terminated or abandoned regarding property located at 85 Martin Luther King Boulevard in the City of Norwalk, County of Fairfield and State of Connecticut, and therefore refusing to provide an engineering and feasibility estimate and evaluation prepared by Malcolm Prinie, Inc. in its possession in the City of Norwalk, County of Fairfield and State of Connecticut." (Verified Complaint, paragraph 4 of Claim for Relief.)
The first element, which the plaintiff is required to prove in order to be entitled to obtain a preliminary injunction, is likelihood of success on the merits. The plaintiff's verified complaint consists of two counts. The plaintiff asserts in his First Count that the defendant's claim that the document requested is exempt from disclosure under the Freedom of Information Act "is an intentional and improper interference with the contractual relationship" between the plaintiff and the owner of the subject property, which interference was done maliciously. He further asserts in that count that the defendant's interference proximately caused the plaintiff to incur additional expenses in the performance of the contract and to suffer lost profits and other compensatory damages. (Verified Complaint, First Count, Paragraphs 12, 13 and 14.) The plaintiff relies upon the same cause of action in his Second Count, but further asserts that "the acts complained of have caused and will cause the plaintiff irreparable injury unless enjoined" and that "the plaintiff has no adequate remedy at law." (Verified Complaint, Second Count, Paragraph 15 and 16.)
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." Collum v. Chapin, 40 Conn.App. 449, 452, 671 A.2d 1329 (1966). Appleton v. Board of Education, 254 Conn. 205, 212-13 (2000). In addition, a cause of action for tortious interference with a contractual relationship "requires proof that the defendant was guilty of fraud, misrepresentation intimidation or molestation . . . or that the defendant acted maliciously . . ." Jones v. O'Connell, 189 Conn. 648, 660 (1983). Moreover, "not every act that disturbs a contract or business expectancy is actionable. A defendant is guilty of tortious interference if he has engaged in improper conduct. [T]he plaintiff is required to plead and prove at least some improper motive or improper means." (Internal quotation marks omitted.) Kent Literary Club of Wesleyan University v. Whaley, supra at 4.
The evidence at the hearing on the plaintiff's request for temporary injunction was not sufficient to show any chance of success on the "merits," let alone a probable or "clear" likelihood of success.
Nor was there any evidence presented, which would show that Mr. Hiscock's denial of the FOIA request was somehow tortious. In fact, despite the allegations in the complaint to the contrary, there was no evidence that Mr. Hiscock's action was malicious in any way.
Thus, based on the evidence presented at the hearing, the plaintiff has failed to prove that it is likely he will prevail on the merits of his tortious interference claim. "As a general rule `[a] temporary injunction should not be granted where the plaintiff's legal rights are not clear or are doubtful.'" (Internal cites omitted.) Saccardi v. Stamford Board of Education, 1995 WL 225532, 4 (Conn.Super.)
Even if the plaintiff had demonstrated that it's likely he will prevail, which he did not, he failed to show that he will suffer irreparable harm if the preliminary injunction is not granted. The evidence presented did not demonstrate that William Cohen will suffer imminent, substantial and irreparable injury should the preliminary injunction not issue.
Finally, the plaintiff has an adequate remedy at law. "Adequate remedy at law means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely, without let or hindrance." Wheller v. Bedford, 54 Conn. 244, 249. If the plaintiff has an adequate remedy at law, he is not entitled to an injunction. Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183 (1916). The plaintiff had the right to appeal, under Section 1-206 of the Connecticut General Statutes, within 30 days. from Mr. Hiscock's denial of his FOIA request. Such an appeal may be considered privileged and if so considered, could be heard within thirty days of the notice of the appeal and a decision rendered within sixty days after the hearing. See C.G.S. Section 1-206(b))1). In addition, the plaintiff can pursue his action for money damages allegedly arising out of the alleged intentional interference with his contractual relationship.
The plaintiff has failed to meet his burden of proving any of the prerequisites for obtaining a temporary injunction.
The plaintiff is not irreparably harmed by the defendant's refusal to release the Pirnie report, nor does he lack an adequate remedy at law.
The plaintiff's requests are denied.
So ordered.
KARAZIN, J.