Opinion
No. CV 04 4000439S
February 15, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#107)
This is an action brought by the plaintiff, Gregory Margaitis, against the defendant William F. Deacon, Sr. On August 20, 2004, the plaintiff filed a two-count complaint against the defendant for losses he allegedly incurred as a result of the defendant's actions. In count one of the complaint, the plaintiff alleges that in August 2003, the parties entered into an agreement, for valuable consideration, whereby the defendant gave a license to the plaintiff to farm approximately fifteen acres of land (property) owned by the defendant in Morris, Connecticut for a period of five years. In reliance on this agreement, the plaintiff took possession of the property and made preparations to farm the property. On or about March 8, 2004, the defendant advised the plaintiff that he had changed his mind about the agreement and requested that the plaintiff vacate the property. As a result of the defendant's breach of the agreement, the plaintiff has incurred expenses for labor, material and equipment, and he has lost revenues and profits. In count two of the complaint, the plaintiff alleges that at the time the parties entered into the agreement, the defendant knew or should have known that the plaintiff would rely on the agreement by taking steps to prepare the property for farming operations. The plaintiff did rely on the agreement by taking possession of the property, purchasing machinery to farm the land, paying to prepare the property for farming and making other expenditures.
On October 1, 2004, the defendant filed a motion to strike the plaintiff's complaint. The motion was accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the defendant's motion to strike on November 5, 2004.
The plaintiff filed his memorandum in opposition on November 5, 2001, which was three days before the defendant's motion to strike was heard on the short calendar. The plaintiff's memorandum in opposition is untimely under Practice Book § 10-42(b). However, the court will utilize its discretion in considering the merits of the plaintiff's memorandum in opposition. Papas Group, Inc. v. Turner, Superior Court, judicial district of New London, Docket No. 559336 (February 26, 2002, Martin, J.).
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In 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).
The defendant moves to strike the complaint on the ground that the plaintiff has not sufficiently pleaded a breach of contract or promissory estoppel claim. Specifically, the defendant moves to strike count one, alleging breach of contract, on the ground that: (1) the revocation of a license to enter real property does not constitute a breach of contract; and (2) the complaint fails to allege the plaintiff's own performance under the terms of the agreement. In response, the plaintiff argues that by beginning performance, he provided valuable consideration, which created an option contract between the parties and made the license irrevocable. The defendant moves to strike count two, alleging promissory estoppel, on the ground that: (1) the complaint fails to allege the existence of any promise made by the defendant; (2) the revocation of a license does not create liability under the doctrine of promissory estoppel; and (3) the plaintiff may not rely on promissory estoppel where the complaint alleges the existence of an express agreement between the parties. In response, the plaintiff argues that: (1) the agreement to allow the plaintiff to farm the property for a period of five years was a clear and definite promise; (2) the plaintiff relied on the promise and has been injured as a result of this reliance; and (3) he is allowed to plead alternative theories of recovery.
I COUNT ONE: BREACH OF CONTRACT
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 411, CT Page 3053 844 A.2d 893 (2004). The agreement alleged in the complaint is for a license. "A license in real property is a personal, revocable and unassignable privilege to enter land for a limited purpose without giving rise to any possessory interest in the land . . ." Muniz v. Kravis, 59 Conn.App. 704, 714, 757 A.2d 1207 (2000). "Generally, a license to enter premises is revocable at any time by the licensor." (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 163, 612 A.2d 1153 (1992). "[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property . . . [It] does not convey a possessory interest in land . . ." (Internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn.App. 517, 522, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001); see also Clean Corp. v. Foston, 33 Conn.App. 197, 203, 634 A.2d 1200 (1993). Moreover, "a license, while affording justification for what is done under it while it remains in effect, [is] not effective to convey an interest in the land and [is] revocable at the will of the licensor, even although the licensee has expended money under the license." Bland v. Bregman, 123 Conn. 61, 64, 192 A. 703 (1937); Morgan Whitney, Inc. v. Providence and Worcester Railroad Co., Superior Court, judicial district of Windham at Putnam, Docket No. CV 99 0061836 (December 12, 2003, Scholl, J.) ( 36 Conn. L. Rptr. 305, 310); see also Stueck v. Murphy, Co., 107 Conn. 656, 661, 142 A. 301 (1928).
The plaintiff's claim that the license was made irrevocable by his beginning performance is not persuasive. Only a few states have treated a license as irrevocable in some instances where expenditures have been made by the licensee. For example, "Pennsylvania has recognized an equitable theory of an irrevocable license when there has been substantial expenditure in reliance on the license . . . The expenditure necessary to establish an irrevocable license could be money or labor." (Citations omitted.) Lara, Inc. v. Dorney Park Coaster Co., 116 Pa.Commw.Ct 548, 554, 542 A.2d 220 (1988), cert. denied, 522 Pa. 580, 559 A.2d 40 (1989). Oregon has also treated a license as irrevocable. "Oregon is one of a minority of jurisdictions which recognize the possibility of an irrevocable license . . . [O]ne who induces another to make significant expenditures for permanent improvements in reasonable reliance upon one's promise to allow a permanent use of land is subsequently estopped from revoking the license." (Internal quotation marks omitted.) Brown v. Eoff, 271 Or. 7, 10-11, 530 P.2d 49 (1975). Nevertheless, Connecticut courts have declined to followed this practice. Bland v. Bregman, supra, 123 Conn. 64; Morgan Whitney, Inc. v. Providence and Worcester Railroad Co., supra, 36 Conn. L. Rptr. 310; Stueck v. Murphy Co., supra, 107 Conn. 661.
In the present case, the plaintiff has alleged that he entered into an agreement with the defendant in which he was granted a license to enter onto the property to perform farming operations. The agreement was merely a license to enter onto the land for the purposes of farming. Regardless of the language used by the plaintiff in an attempt to characterize the license as a contractual agreement, a license does not create a contractual obligation between the parties and is freely revocable. Moreover, Connecticut courts continue to treat a license as revocable regardless of whether expenditures have been made by the licensee. The court finds that the facts alleged in the complaint do not support a breach of contract claim. The motion to strike count one is granted.
II COUNT TWO: PROMISSORY ESTOPPEL
"Under the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . [The Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003). "A plaintiff asserting a cause of action for promissory estoppel must plead and prove the following four elements: 1) the promisor made a clear and definite promise; 2) the promisee reasonably relied on the promise; 3) the promise induced the action taken by the promisee; and 4) injustice can be avoided only by enforcement of the promise." (Internal quotation marks omitted.) Corey v. Laurels Condominium Assn., Superior Court, judicial district of New Haven, Docket No. CV 02 0469807 (June 14, 2004, Hadden, J.).
"A fundamental element of promissory estoppel . . . 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." (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., supra, 267 Conn. 104-05. "[T]he promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future . . . [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance . . . and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion." (Citations omitted; internal quotation marks omitted.) Id., 105-06. "Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for . . . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer." (Emphasis in original; internal quotation marks omitted.) Id., 105. "The representations made by the promisor must be sufficiently definite to support contractual liability." (Internal quotation marks omitted.) Lippold v. N-Store Opportunities, Inc., Superior Court, judicial district of New Haven, Docket No. CV 97 0396741 (September 8, 1997, Zoarski, J.T.R.). "Finally, whether a representation rises to the level of a promise is generally a question of fact, to be determined in light of the circumstances under which the representation was made." Stewart v. Cendant Mobility Services Corp., supra, 267 Conn. 106. Nevertheless, "[a]llegations of promissory estoppel should be dismissed as inadequate if they fail to allege an objectively reasonable, clear and definite promise made by the defendants." Peterson v. Parillo, Superior Court, judicial district of New Haven, Docket No. CV 03 0477200 (July 21, 2004, Arnold, J.). "[T]he plaintiff must sufficiently plead allegations of promissory estoppel to survive a motion to strike." Id.
In the present case, the plaintiff has alleged that he took possession of the property and made preparations to begin farming operations in reliance on the license agreement. Nevertheless, the court has previously stated that a license does not create a contractual obligation between the parties and is freely revocable. The plaintiff alleges that the license to farm the property was a clear and definite promise. Judged by an objective standard, however, the defendant could not reasonably expect the plaintiff to rely on a mere license to farm property becoming irrevocable. The defendant reserved the right to revoke the license at any time. As perhaps best articulated by the Washington Court of Appeals in Showalter v. Cheney, supra, 118 Wash.App. 543, 549, 76 P.3d 782 (2003), "[I]mplicit in the nature of a license is the licensee's presumed knowledge that permission may be withdrawn. Consequently, funds expended in reliance on a mere license do not create a valuable, compensable property right." Id. The facts alleged in the complaint, viewed in the light most favorable to the plaintiff, fail to establish the existence of a clear and definite promise by which the defendant could reasonably have expected to induce reliance on the part of the plaintiff. Accordingly, the motion to strike count two is granted.
In light of the decision of the court, it is not necessary to determine whether claims of breach of contract and promissory estoppel are allowable in one complaint as alternative theories of recovery.
BY THE COURT
Bozzuto, J.