Opinion
No. CV-03-0081183S
July 22, 2004
MEMORANDUM OF DECISION
The plaintiff, Hope Academy (Hope), brought this action in a one-count complaint claiming breach of contract and seeking the unpaid balance of tuition for an academic program in which the defendants' daughter was enrolled in the 2002-03 academic years. The defendants, Gerald and Heather Friel (Friels), appeared pro se and filed an answer, special defenses and a counterclaim. The Friels admitted entering into an agreement with Hope to enroll their daughter in an academic program and admitted that there was an unpaid balance. They claimed, however, that Hope had breached its contract with them, had made material misrepresentations and had engaged in "bait and switch" conduct that was in violation of the Connecticut Unfair Trade Practices Act (CUTPA).
This case was tried before the court on March 22, 23 and 24, 2004. Simultaneous briefs were filed by the parties on July 12, 2004.
I. FINDINGS OF FACT
The court makes the following findings of fact: Hope Academy is a private school for children with learning disabilities or disorders that is located in Milford, Connecticut. The Friels enrolled their daughter to attend Hope for the 2002-03 academic year. Before that year, she had attended a public school in their hometown of Westport. The Friels admit that on August 15, 2002 they signed exhibit 1, a document entitled "2002-03 Enrollment Contract" (enrollment contract), in which they opted to make tuition payments totaling $23,5000.00 in four installments between August 16, 2002 and February 1, 2003. The Friels admit that they paid Hope the sum of $13,500.00 on account, but did not pay the remaining $10,000.00.
The court's factual findings are based on either undisputed evidence or facts proven by a fair preponderance of the evidence.
In late July 2002, Mrs. Friel contacted Hope because she wanted her daughter, who had successfully completed a summer program at another special education school, to spend a year in such a school in order to close gaps that had resulted when she was mainstreamed in the public school. On July 31, 2002, Mrs. Friel met with Laura Carroll ("Carroll"), Hope's president. On that date, Mrs. Friel submitted an application (exhibit M), toured the facility and discussed aspects of Hope's program with Carroll. On the same day, her daughter was evaluated by a teacher. On August 16, 2002, the Friels executed the enrollment contract. The Friels' daughter began the academic year as a second grader. The Friels were aware that she was the youngest child at the school, which had an enrollment of some twenty to twenty-five students. During the course of the first semester, Mrs. Friel observed that her daughter was anxious and frustrated with her environment and found there were mounting problems, including, among other things, the absence of a music program and problems with teachers. After the sudden death of a very experienced teacher in December and in light of her daughter's lack of progress, Mrs. Friel advised Carroll on January 14, 2003 that she was withdrawing her daughter from Hope. The Friels opted to have their daughter privately tutored for the remainder of the academic year, although she could have returned to the public school in Westport.
Other findings of fact will be made in connection with the specific issues decided by the court.
II. DISCUSSION: SPECIAL DEFENSES AND COUNTERCLAIM
It is undisputed that the Friels executed the enrollment contract and did not pay the bill amount of the tuition. The principal issue before the court is whether the defendants have proven any of their defenses or counterclaims, which are identical, by a fair preponderance of the evidence. The claims that the Friels raise are as follows: (1) Hope failed to provide certain services that they maintain were within the terms of the contract and thus Hope has breached its contract with them; (2) Hope made certain false representations to induce the Friels to enroll their daughter which provide a remedy by way of intentional or negligent misrepresentation; (3) Hope's conduct amounted to a violation of General Statutes § 42-110a, et seq., (CUTPA).
A. Contract Claim
Hope maintains that the enrollment contract is fully integrated and expresses the entire contract between the parties. The Friels maintain the enrollment contract does not define the complete terms of the contractual relationship between them and Hope and that the court must look to certain documents and oral representations outside the enrollment contract to ascertain the contractual relationship.
Whether the court concludes that the contractual relationship here is defined solely by the enrollment contract or encompasses other promises, the court must apply the rule of Gutpa v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996), because this case arises in the context of a contract for education. Gutpa stands for the principle that the courts will generally not interfere when claims, whether brought in contract or tort, are made against an academic institution regarding the nature and content of its educational programs or the criteria which the institution applies in determining whether a student meets its academic requirements. Id., 239 Conn. 590-92.
The Gutpa court, however, recognized "at least two situations wherein courts will entertain a cause of action for breach of 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." (Internal citations omitted). Id., 239 Conn. 592-93. The parties agree that only the second Gutpa exception is applicable to this case.
The second Gutpa exception is narrow. It requires proof by a fair preponderance of the evidence, that the educational institution "failed to provide specifically promised educational services." CenCor, Inc. v. Tolman, 868 P.2d 396, 399 (Colo. 1994) (en banc) (emphasis supplied). To qualify as a "specific contractual promise," the promise or promises relied on must be precise and grounded on specific contractual terms or provisions. Faigel v. Fairfield University, 75 Conn. App. 37, 42, 815 A.2d 140 (2003). General or vague promises do not suffice. See Tankoos v. The Mead School, Superior Court, Judicial District of Stamford Complex Litigation Docket, Docket No. 0145853 (June 9, 1999) (Tierney, J.).
In this case, the Friels have alleged that Hope made the following promises to them (First Special Defense ¶ 1, incorporated in all special defenses and in all counts of the counterclaim):
In considering the defendants' claims, the court is limited to the allegations made in the special defenses and counterclaim. Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002).
(a) that a written multi faceted diversified curriculum would be provided;
(b) that the Defendant's daughter would be appropriately evaluated and an educational program would be offered with academic age and appropriate peers;
(c) speech therapy sessions would be in place in the fall of 2002 for the 2002-03 academic year; CT Page 11360
(d) all teachers would hold current state certification in special education;
(e) a music program would be an integral part of the program for the 2002-03 academic year;
(f) weekly visits to the Milford Public Library would be an integral part of the program for the 2002-03 academic year;
(g) the educational program for the Defendant's daughter during the 2002-03 academic year would maximize educational progress beyond the level presented during the 2001-03 academic year in Defendants' public school system.
The court will assume, for the purpose of this decision, that these alleged promises, arising from documents other than the enrollment contract and conversations between Mrs. Friel and Hope's agents, were part of the bargain between the Friels and Hope. Nonetheless, for reasons elaborated below, the court concludes that under the circumstances of this case the "exacting standard," Faigel v. Fairfield University, supra, 75 Conn. App. 38, of the second Gutpa exception has not been satisfied.
Express and implied promises in documents such as catalogues, bulletins, handbooks and the like, concerning "core matters" of an educational program have been found to be part of an educational contract. See Johnson v. Schmitz, 119 F. Sup.2d 90, 93 (D.Conn. 2000), and cases cited therein. The Friels rely on conversations between Mrs. Friel, Carroll and others prior to signing the enrollment contract, Hope's brochure (exhibit B), Hope's website home page (exhibit C), the Student-Parent handbook (exhibit E), a document entitled "Program of Studies" (exhibit J) and a registration form for speech and language services (exhibit N).
The promises alleged to have been made by Hope in paragraphs (a), (b) and (g) concern the course of instruction offered and the implementation of its educational program and curriculum. The court is not in position to apply objective standards to analyze the allegations regarding a "multi-faceted . . . curriculum," whether a student was `appropriately evaluated" and whether the school did or could "maximize educational progress." In order to assess the design and implementation of an academic program, as well as its effectiveness, the court would be required to second-guess the professional judgment of Hope's educators and staff and analyze the educational appropriateness and effectiveness of Hope's curriculum. This is precisely the type of review Gutpa cautioned against, stating that it is "a project that the judiciary is ill equipped to undertake." Gutpa v. New Britain General Hospital, supra, 239 Conn. 590. "The courts should not become engaged in determining the propriety of the course of instruction adopted by a private school." Paladino v. Adelphi University, 89 App. Div. 2d 85, 92, 454 N.Y.S.2d 868, 873 (N.Y.App.Div. 1982). See Baldrige v. State, 293 App. Div. 2d 941, 942, 740 N.Y.S.2d 723 (N.Y.App.Div.), appeal denied, 98 N.Y.2d 608, 774 N.E.2d 757 (2002). Accordingly, the court holds that the allegations made in paragraphs (a), (b) and (g) are not cognizable.
In their trial brief, the defendants have asserted a claim that Hope materially breached its contract by failing to provide a comprehensive individualized education program (IEP) to them at the October parent-teacher conference. Although this claim was not specifically alleged, a claim related to an IEP is not cognizable under Gutpa v. New Britain Hospital, supra, 239 Conn. 590-91, because it involves the design, implementation and reasonableness of an educational program.
As to the allegations contained in paragraphs (c), (d), (e) and (f), the court concludes that the Friels have failed to prove, by a fair preponderance of the evidence, that these items were specifically promised educational services that Hope was required to provide to avoid being found in breach of contact. The court will discuss each claim separately.
In paragraph (c), the Friels claim that Hope promised that a speech therapy program would be in place at the beginning of the 2002-03 academic year. Speech therapy was not a part of the educational program that Hope offered. There is evidence that Hope was seeking to facilitate on-site speech therapy for its students through an independent contractor. In that regard, Hope provided a registration form, clearly stating the name of the independent contractor, and the form indicated information would be forwarded to the service provider for review (exhibit N). Hope did not make a specific promise that on-site private speech therapy would be available for any student seeking such a service. Indeed, the P.T.O. newsletter (exhibit O) for the week ending September 20, 2002 notified parents that the "service provider is . . . trying to deliver speech services, however, it has been very difficult to find a qualified, experienced part-time speech therapist — there is a shortage." It is not reasonable to conclude that on-site privately contracted speech therapy was part of the educational services for which the Friels contracted with Hope. Accordingly, the court finds against the Friels on this claim.
In paragraph (d), the Fniels claim that Hope promised all teachers would hold current state certification in special education. The Friels rely on Hope's brochure (exhibit B) and website home page (exhibit C). Those documents state that "all teachers maintain state certification in special education." The word "maintain" is defined as "to keep up." The American Heritage College Dictionary (Houghton-Mifflen, 3d edition). Again, any attempt to analyze this claim would require the court to second-guess the design and implementation of Hope's educational program. Generally, challenges to the quality of instructors are not cognizable. See Alsides v. Brown Institute, Ltd., 592 N.W.2d 468, 473 (Minn.App. 1999). Moreover, it appears that Hope was in reasonable compliance with its representation. The evidence establishes that at the beginning of the 2002-03 academic year all the core teachers at Hope were state certified in special education, although not all the secondary teachers were so certified. There was also evidence that one teacher had passed her praxis and was awaiting her formal certification. The school counselor, who was a social worker, and the gym teacher were not state certified. Certain events occurred during the school year, including the dismissal of one teacher and the untimely death of another teacher, which affected the number of state certified teachers on staff, but these events were outside of the control of Hope. The court concludes that the Friels have failed to prove that Hope materially breached any specific promise it may have made regarding the certification of its teachers.
In paragraph (e), the Friels claim that Hope promised that a music program would be an integral part of the program for the 2002-03 academic year, again relying on exhibits B and C, as well as Mrs. Friels' conversations with Carroll. Exhibit B states that Hope provides a course in music and exhibit C states that Hope provides a program in music. What constitutes a "course" or a "program" is not specified. The evidence establishes that in the 2002-03 academic year, Hope integrated music instruction in its curriculum but did not offer a separate music class. None of the evidence establishes that Hope specifically promised a separate music class for its students. Without attempting to second-guess Hope's decision to offer music instruction in conjunction with other aspects of its curriculum, that decision was not a breach of any specific promise for educational services. Accordingly, the court finds against the Friels on this claim.
In paragraph (f), the Friels claim that Hope promised that weekly visits to the Milford Public Library would be an integral part of the program for the 2002-03 academic year relying on a document titled "Program of Studies," exhibit J, and conversations between Mrs. Friel and Carroll. Exhibit J contains a single reference to "scheduled visits to Milford Library" as an element of the library skills component of Hope's study skills curriculum. Hope did not have its own library and did use the Milford public library for its students. There was conflicting evidence before the court on this issue with Carroll recollecting that students were taken to the Milford library during the 2002-03 school year and Mrs. Friel stating that her daughter did not go to the library or bring home any library books. The court concludes that the Friels have failed to prove, by a fair preponderance of the evidence, that Hope specifically promised that weekly visits to the Milford public library were part of the educational services it was contracting with them to provide to their daughter.
Finally, in the enrollment contract (exhibit 1), Hope expressly reserved the right to, among other things, "implement reasonable . . . educational objectives for the operation of its programs" and the Friels expressly agreed "to comply with such reasonable . . . objectives." To the extent that the claimed promises, particularly those alleged in paragraphs (a), (b), (c) and (f), involve Hope's educational objectives for the operation of its programs, this express disclaimer negated any intent on Hope's part to be bound by any promises. See Law v. William Marsh Rice University, 123 S.W.2d 786, 793 (Tex.App. 2003). Accordingly, the court finds against the Friels on their special defenses and counterclaim arising in contract.
B. Misrepresentation
The second special defense and second count of the counterclaim allege intentional misrepresentation. The third special defense and third count of the counterclaim allege negligent misrepresentation.
In order to prevail on a claim of intentional or fraudulent misrepresentation, the following elements must be established: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the maker to be untrue; (3) the statement was made to induce the other party to act; and (4) that party acted on the false representation to his or her detriment. Updike, Kelly Spellacy v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004). The standard of proof is clear and convincing evidence. Citino v. Redevelopment Agency, 51 Conn. App. 262, 269-70, 721 A.2d 1197 (1998). The evidence here does not establish, clearly and convincingly, that Hope's agents made any false representation as to any statement of fact for the purpose of inducing the Friels to enroll their daughter at Hope.
In order to prevail on a claim of negligent or innocent misrepresentation, the following elements must be established: (1) a representation of material fact (2) made for the purpose of inducing a party to act, (3) the representation is untrue, (4) there is justifiable reliance by the party so acting on the representation and (5) that party suffers a pecuniary loss. Frimberger v. Anzellotti, 25 Conn. App. 401, 410, 594 A.2d 1029 (1991). "[E]ven an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." (Citations omitted; internal quotation marks omitted). Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). See Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978); § 552, Restatement (Second) of Torts (1977). As with intentional misrepresentation, falsity is an essential element of negligent misrepresentation. See Daley v. Aetna Life Casualty Co., 249 Conn. 766, 792-93, 734 A.2d 212 (1999). Based on all the evidence adduced at trial, the court concludes that the Friels have failed to establish, by a fair preponderance of the evidence, that Hope's agents made any false representations, or innocent representations which they should have known were false, to induce them to enroll their daughter at Hope.
C. CUTPA
In the fourth special defense and the fourth count of the counterclaim, the Friels allege that Hope engaged in "bait and switch" conduct in violation of CUTPA because "services and features promised . . . were not delivered or were eliminated or substantially changed without any notice to, or agreement by, the defendants." (¶ 4). The court has already concluded that the Friels have failed to establish, by a fair preponderance of the evidence, that Hope made any specific promises for educational services to them or made any false representations regarding the educational program that Hope offered. Furthermore, Hope expressly reserved the right to, among other things, "implement reasonable . . . educational objectives for the operation of its programs" (exhibit 1) and to amend its student/parent handbook (exhibit E). There is simply no evidence that Hope engaged in any "bait and switch" conduct. Furthermore, in light of the failure of proof of the contract and tort claims here, there is no basis to impose liability under CUTPA.
III. DISCUSSION: HOPE'S ACTION
The court concludes, based on all the evidence presented, that Hope has established, by a fair preponderance of the evidence, that the Friels entered into a contract with Hope to educate their daughter for the 2002-03 academic year in exchange for the payment of tuition in the amount of $23,500.00 and that $10,000.00 remains unpaid. The enrollment contract provided that all payments were to be made by March 1, 2003 and that "[n]o refund, rebate or reduction shall be made because of . . . withdrawal . . . of the student from Hope Academy." (Exhibit 1). The enrollment contract further provided for a late fee, interest, and reasonable attorneys fees. Hope is entitled to rely on its contract in receiving an award of damages. St. Margaret's McTernan School, Inc. v. Thompson, 31 Conn. App. 594, 596-98, 627 A.2d 449 (1993); Leo Foundation, Inc., v. Kiernan, 5 Conn. Cir. Ct. 11, 16, 240 A.2d 218 (1967).
The plaintiff has sought an additional $200 for schoolbooks. There was evidence that the Friels' daughter did not receive books of that value. Accordingly, the court will not award damages for the books.
Accordingly, judgment shall enter on the complaint in favor of the plaintiff Hope Academy. Damages are awarded as follows: The tuition balance due of $10,000.00, a late fee of $150.00 and interest pursuant to the terms of the contract in the amount of $1,755.08, for a total judgment in the amount of $11,905.08. No costs are awarded to either party.
The contract calls for interest at the rate of 1.5% per month, 18% per annum, to accrue on any sums remaining unpaid after 30 days. According to the contract, the tuition was to be paid in full by March 1, 2003. Using April 1, 2003 as the operative start date and March 22, 2004 as the operative end date, the accrued contract interest is $1,755.08 ($10,000.00 × 18%/365 = 4.93 per diem x 356 days).
The court reserves decision regarding any award of attorneys fees which it will consider only upon the submission of a motion, with appropriate supporting evidence, filed within ten days of the filing date of this decision.
LINDA K. LAGER, JUDGE