Opinion
No. CV03-0349701 S
January 24, 2005
MEMORANDUM OF DECISION
RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #115
This action arises from the alleged breach of a written settlement agreement concerning the special education placement of the defendants' minor son (the child). In an effort to resolve their disagreement as to the necessity of a private school placement as opposed to placement within the New Fairfield public schools, and with the goal of avoiding the costs of litigating any potential claims arising from the child's placement, the plaintiff, New Fairfield board of education, and the defendants, Karen and Christopher Cortese executed a written settlement agreement in June 2002 setting forth the rights and obligations of each party for the 2002/2003 and 2003/2004 school years. By the terms of the agreement, the plaintiff school board agreed to contribute $19,000 toward the cost of educating the child for the 2002/2003 school year at the Kildonan School, a private school in New York, with the defendants to bear any excess costs. In turn, the defendants agreed not to challenge the plaintiff's decision to place the child within the New Fairfield public school system for the 2003/2004 school year, and to waive any claims for programming, attorneys fees or other costs incurred in connection with the child's placement through June 30, 2004. The defendants also agreed not to file a request for a special education due process hearing through June 30, 2004, and to withdraw any requests they had outstanding.
The parties do not dispute that the defendants' child is disabled and requires special education.
The defendants believe that private school is necessary to provide their child with appropriate special education. The plaintiff maintains that an in-district placement at New Fairfield high school is sufficient.
The defendants are appearing pro se. "[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn.App. 654, 656, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003); but see Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 861, 859 A.2d 932 (2004) (noting that "[a]lthough [the courts] allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law").
Thereafter, the plaintiff filed a one-count complaint on July 21, 2003 for breach of contract, alleging that the defendants commenced a due process hearing in June 2003 to challenge the plaintiff's decision to place their child at New Fairfield high school for 2003/2004, causing the plaintiff to suffer damages in defending its placement decision and the terms of the settlement agreement. By amended complaint filed on January 21, 2004, the plaintiff added a second count, sounding in unjust enrichment, alleging that the defendants wrongly accepted the $19,000 payment from the plaintiff without honoring the terms of the agreement. The plaintiff seeks money damages, costs and other relief deemed reasonable.
On June 29, 2004, the defendants filed a motion for summary judgment with a memorandum in support. The plaintiff timely filed a memorandum in opposition. The defendants filed a reply on August 9, 2004, and on August 16, 2004, this court denied the defendants' motion. Pursuant to Practice Book § 11-12, the defendants filed a motion to reargue on August 24, 2004, with a memorandum in support, on the ground that the court did not afford them the opportunity to present their argument for summary judgment. The defendants' motion to reargue was granted on August 31, 2004.
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45]." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
A brief review of the administrative proceedings that preceded the filing of the plaintiff's complaint is necessary. In June 2002, the defendants instituted a due process hearing before the Connecticut department of education to resolve a dispute with the plaintiff over their child's 2002/2003 special education placement. In June 2002, before a decision was entered in that matter, the parties entered into mediation, culminating in the settlement agreement presently at issue. On June 14, 2003, the defendants commenced a due process hearing to challenge their child's 2003/2004 placement. On June 23, 2003, the plaintiff filed a motion to dismiss this later due process hearing for breach of the settlement agreement. On July 1, 2003, the hearing officer rendered a decision on the plaintiff's motion to dismiss, granting it in part and denying it in part. The defendants moved for reconsideration of the department's finding on the motion to dismiss on July 2, 2003. The hearing officer denied the motion on July 9, 2003. A final decision and order was issued on Case No. 03-181 on August 18, 2003.
Student v. New Fairfield Board of Education, Case No. 02-120.
Student v. New Fairfield Board of Education, Case No. 03-181.
The hearing officer decided that the settlement agreement did not bar the defendants from challenging the placement of their child for 2003/2004. If, however, it was determined that the child should be placed outside the public school system, the plaintiff was obligated to find such a placement only up to the amount it would have expended under the education plan it had proposed as of the date the defendants commenced the due process proceeding. At that time, the proposed education plan was for public schooling.
The defendants base their motion for summary judgment on four grounds. The defendants first claim that the doctrines of res judicata and collateral estoppel apply to preclude the plaintiff from bringing a suit for breach of contract since the rights and liabilities of the parties were put in issue and determined by the department of education in an impartial due process hearing in Case No. 03-181 on August 18, 2003. The defendants then contend that the plaintiff failed to exhaust its administrative remedies in that it is seeking relief from this court for breach of contract instead of appealing the decision of the hearing officer. The defendants also claim that this court lacks subject matter jurisdiction as a result of the plaintiff's failure to exhaust administrative remedies. Finally, the defendants assert that the plaintiff's claims are time barred as the plaintiff did not file an appeal of the hearing officers' final decision within the applicable forty-five day limitations period. In support of their motion, the defendants submit the following: (1) a copy of the plaintiff's motion to dismiss the due process proceeding, with supporting memorandum, submitted to the state department of education, dated June 23, 2003; (2) a copy of the defendants' motion in opposition to the plaintiff's motion to dismiss, dated June 23, 2003; (3) a copy of the plaintiff's reply to the defendant's motion in opposition, dated June 29, 2003; and (4) a copy of the ruling of the state department of education on the motion to dismiss, dated July 1, 2003.
General Statutes 10-76h(d)(4) provides for an appeal to the superior court of the decision of the hearing officer or board "in the manner set forth in section 4-183." Section 4-183 (c) sets a forty-five day period for appeals. See also Regs., Conn. State Agencies § 10-76h-8(f)(4).
In lieu of a formal motion in opposition to the plaintiff's motion to dismiss, the defendants sent a letter, with supporting documents, to the plaintiff's counsel. It does not appear that the letter was properly sworn to or certified. As the plaintiff did not object to the format of the document or to its admissibility, the court will consider the letter alongside the other admissible evidence presented in deciding the present motion. See Hill v. Williams, 74 Conn.App. 654, 656, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242.
The defendants also submit a copy of their motion for reconsideration of the hearing officer's July 1, 2003 ruling on the motion to dismiss, dated July 2, 2003, a copy of the plaintiff's motion to deny the defendants' motion for reconsideration, dated July 9, 2003 and a copy of the hearing officer's ruling denying the motion, dated July 9, 2003.
In opposition to the motion for summary judgment, the plaintiff argues that its claims for breach of contract and unjust enrichment are not barred by res judicata or collateral estoppel since the due process hearing officer had no jurisdiction to decide the claims, and the claims were not litigated or decided by the hearing officer. Moreover, the plaintiff contends, breach of contract claims cannot be brought by a school board pursuant to a due process hearing under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., as the remedies provided under the act do not include money damages. In support of their claims, the plaintiff offers (1) a copy of the parties' June 2002 settlement agreement; (2) a copy of the plaintiff's motion to dismiss the due process proceeding, dated June 23, 2003; (3) a copy of the ruling of the state department of education on the motion to dismiss, dated July 1, 2003; (4) a copy of the sworn affidavit of Daniel P. Murphy, Esq., who was involved, with his firm, on behalf of the plaintiff in connection with the due process hearing involving the defendants' son; and (5) a copy of the final decision and order of the state department of education in the due process hearing, dated August 18, 2003.
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., was enacted "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living," and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. §§ 1400 (d)(1)(A) and (B). The IDEA, "which is the basis of the Connecticut special education scheme . . . [gives disabled students] an enforceable substantive right to public education in participating States . . ." (Citation omitted; internal quotation marks omitted.) Unified School District No. 1 v. Dept. of Education, 64 Conn. App. 273, 286, 780 A.2d 154, cert. denied, 258 Conn. 910, 782 A.2d 1253 (2001). "Connecticut has chosen to participate in the [Individuals with Disabilities Education Act]," and receives federal funding for implementing the act's provisions. Mrs. C. v. Wheaton, 916 F.2d 69, 71 (2d Cir. 1990). To comply with the IDEA, Connecticut enacted legislation to implement the Act's requirements pursuant to 20 U.S.C. § 1415 (a). See General Statutes § 10-76a et seq. and corresponding regulations.
Under the IDEA, "free appropriate public education" is defined as "special education and related services that have been provided at public expense, under public supervision and direction, and without charge . . ." See 20 U.S.C. § 1401(8). "Special education" is defined as "specially designed instruction, at no costs to parents or guardians, to meet the unique needs of a child with disability, including instruction conducted in a classroom, in the home, in hospitals and institutions, and in other settings; and instruction in physical education." See 20 U.S.C. § 1401(25).
This case was decided under the Education of the Handicapped Act which, through amendment, became the Individuals with Disabilities Education Act. The IDEA is substantively similar, with the designation that it now applies to individuals with "disabilities" rather than "handicaps."
Under the IDEA, states must review the educational performance levels of each disabled child, assess the child's needs and formulate an individual education plan (IEP) explaining in writing the services to be provided to the child. See 20 U.S.C. §§ 1401(11) and 1414(d)(1)(A); 34 C.F.R. §§ 300.343-300.345. The IEP is created by the child's planning and placement team (PPT), a group which includes a representative of the local educational agency, teachers, an individual who can interpret the instructional implications of evaluation results, the child's parents and, when appropriate, the child. See 20 U.S.C. § 1414(d)(1)(B); General Statutes § 10-76ff; 34 C.F.R. § 300.344. The IEP is reviewed periodically, but no less than annually, by the PPT to determine whether the annual goals for the child are being achieved and to assure that the child's educational program accurately reflects his or her current circumstances. See 20 U.S.C. § 1414 (d)(4).
General Statutes § 10-76ff(b)(1) refers to the group that determines a child's special education needs as a "planning and placement team" whereas the IDEA refers to an "individualized education program team." As there is no ascertainable difference between the two, the term "PPT" will be used hereafter to maintain consistency with the parties' pleadings and the department of education's rulings.
The IDEA provides parents of a disabled child with some recourse if they are dissatisfied with their child's special education placement. "Primary among the procedural safeguards employed by IDEA is the requirement that states provide parents of disabled students the right to seek review of any decision concerning their children's education." Hope v. Cortines, 872 F.Sup. 14, 16 (E.D.N.Y), aff'd, 69 F.3d 687 (2d Cir. N.Y. 1995). Parents have the "opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. 1415 (b)(6). Moreover, parents who have presented a complaint have the "opportunity for an impartial due process hearing . . . conducted by the [s]tate educational agency or local educational agency, as determined by [s]tate law or by the [s]tate educational agency." 20 U.S.C. § 1415 (f)(1); see General Statutes § 10-76h. Decisions made at the due process hearing are final, but an aggrieved party may still appeal by bringing a civil action in federal or state court to challenge the agency's determination. 20 U.S.C. § 1415 (i)(2)(A).
General Statutes § 10-76h provides, in relevant part: "(a)(1) A parent or guardian of a child requiring special education and related services . . . may request, in writing, a hearing of the local or regional board of education or the unified school district responsible for providing such services whenever such board or district proposes or refuses to initiate or change the identification, evaluation or educational placement of or the provision of a free appropriate public education to such child or pupil."
At the core of the parties' dispute is the enforceability of their June 2002 settlement agreement. The plaintiff contends that the agreement represents a binding contract, valid and enforceable in its entirety, and the defendants are in breach of contract for violating its terms. The defendants assert that they are not in breach of contract since the portion of the agreement that prohibited them from seeking a due process hearing to challenge their child's 2003/2004 placement was void as against public policy. The defendants also challenge the plaintiff's claims on procedural grounds. The defendants maintain that the plaintiff already had the opportunity to argue its breach of contract claim through administrative means, and thus it is barred from doing so now. The plaintiff counters that it did not raise its breach of contract claims at any time prior to the present action as the department of education has no jurisdiction to adjudicate claims for monetary damages.
Both parties submit as evidence a copy of the state department of education's ruling on the plaintiff's motion to dismiss the defendants' request for a due process hearing, wherein the hearing officer reviewed thoroughly the agreement's terms and ruled the motion to dismiss granted in part and denied in part. The hearing officer determined: (1) The settlement agreement "will not be deemed to bar the [p]arents from seeking a determination as to whether the IEP proposed by the [b]oard for the 2003/2004 school year provides the [s]tudent with FAPE [free appropriate public education] in the LRE [least restrictive environment]," (2) if the child were to "attend Kildonan in the 2003/2004 school year, whether as a result of a unilateral placement by the [p]arent or a determination through this hearing process or by a PPT convened in light of this ruling, consistent with the terms of the settlement agreement, the [b]oard will be obligated to find such a placement only up to the amount the [b]oard would have expended with respect to the [s]tudent under the IIEP proposed by the [b]oard for the 2003/2004 school year as of the date the [p]arents commenced this due process proceeding."
See fn.10.
"To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A).
In the state department of education's final decision and order issued on August 18, 2003, the hearing officer made several findings consistent with the reasoning he articulated in the ruling on the motion to dismiss. Most importantly, he found that the plaintiff did not violate procedural due process requirements in connection with PPTs convened for the defendants' child on May 7, 2003 and June 2, 2003 to determine the child's placement for 2003/2004. Moreover, he determined that the IEP proposed by the plaintiff at the June 2, 2003 PPT meeting for the child for the 2003/2004 school year — that is, placement within the New Fairfield public school system — provided the child with a FAPE in the LRE.
A review of the defendants' memorandum of law in support of its motion for summary judgment, and affidavits, pleadings and other exhibits attached thereto, support their claim that there is no genuine issue of material fact with respect to the settlement agreement and the plaintiff's breach of contract claim. The provisions of the settlement agreement that contravene the defendants' right to challenge the appropriateness of their child's placement for 2003/2004 are unenforceable as against public policy and severable from the remainder of the contract, in which the plaintiff agreed to contribute $19,000 toward the child's 2002/2003 private schooling.
The IDEA expressly provides that a child's IEP must be reviewed at least once annually in a PPT and that parents who are not satisfied with their child's IEP may request an impartial due process hearing before the state educational agency. See 20 U.S.C. § 1414 (d)(4) and § 1415 (b)(6) and (f); General Statutes § 10-76h. The settlement agreement, however, mandates an in-district placement for the child irrespective of his needs. The agreement states, in relevant part, that the child "shall by agreement of the parties be placed for the 2003/2004 school year in a program within the [b]oard's schools . . . The parents further waive the right to challenge the appropriateness of the [b]oard's proposed IEP and placement for the 2002-04 school years . . ."
In ruling on the plaintiff's motion to dismiss, the board of education hearing officer examined Woods v. New Jersey Dept of Education, 796 F.Sup. 767 (D.N.J. 1992), wherein the parents of a disabled child entered into a settlement agreement with the school board similar to the one at issue here. The Woods agreement sought to predetermine placement of the child for the next academic year, and placed a prohibition on the parents making any claim against the board with respect to that placement. The court determined that "[a]lthough the [parents] voluntary agreed to forgo [the child's] rights vis-a-vis the [school board], the [school board] still has a duty to comply with the IDEA and [state] law and to provide [the child] with a free appropriate public education . . . Consequently, the [settlement agreement] does not bar the present action against [the school board]." (Citation omitted.) Id., 776. The hearing officer reasoned that " Woods stands for the proposition that a hearing officer should determine whether provisions such as these, in the facts of a particular case before it, are consistent with the requirements of the IDEA," and found that a "local educational agency and parents may not properly enter into an agreement which potentially jeopardizes the educational interests of the child by pre-determining a placement for the child regardless of the child's educational needs at the time the agreement was to become effective."
The IDEA contemplated protections for the parents of children with special educational needs that cannot be overridden. "Generally, agreements contrary to public policy, that is, those that negate laws enacted for the common good, are illegal and therefore unenforceable. Contractual rights arising from agreements are subject to the fair exercise of the power of the state to secure health, safety, comfort or the general welfare of the community." 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn.App. 377, 389, 820 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003). To the extent the terms of the settlement agreement are inconsistent with the policy goals and requirements of the IDEA, they may be deemed unenforceable. The provisions of the settlement agreement that restrict the right of the defendants to request a due process hearing to determine the appropriate special education placement of their child is against the public policy of the state of Connecticut. The defendants, as such, are not in breach of contract for seeking a due process action to challenge their child's proposed IEP.
But see Mr. J v. Board of Education, 98 F.Sup.2d 226 (D.Conn. 2000), which found that an agreement to limit a board's payment for special education to a certain sum was enforceable. The present matter, however, deals not with payment, but with a restriction on the parents' ability to have a due process determination of the appropriateness of an educational placement.
The hearing officer's July 1, 2003 ruling on the motion to dismiss notes that the defendants made no claim that the plaintiff acted in bad faith at the May and June 2003 PPTs, where the plaintiff proposes an in-district placement for 2003/2004. The hearing officer thus "reache[d] no conclusion as to whether the proposed IEP for the 2003/2004 school year satisfies the requirements of the IDEA and applicable state special education laws." This court, similarly, will not address the merits of the plaintiff's placement determination.
Although one part of the settlement agreement may be declared unenforceable as against public policy, the remainder of the agreement may be severed from the whole and still be enforced. "[I]t is the general rule that a severable contract is one in its nature and purpose susceptible to division and apportionment . . . The determinative test is in ascertaining from the language used, read in the light of the surrounding circumstances, what was the intention of the parties . . . In determining the severability of the contract, the court looks to whether the contract's parts and its consideration are common to each other or independent of one another." (Citations omitted; internal quotation marks omitted.) Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn.App. 109, 118, 679 A.2d 372 (1996). In this matter, one segment of the settlement agreement addresses the child's placement for the 2002/2003 school year and the other addresses the 2003/2004 school year. One can function without the other to the extent that the provisions of the settlement agreement concerning the plaintiff's agreement to contribute $19,000 toward the child's private schooling for 2002/2003 are unambiguous and represent what the parties bargained for, they may be enforced even if the provisions concerning the 2003/2004 school year may not.
The court need not reach any conclusions as to the merits of the settlement agreement's cost allocation provisions. Courts "interpret contract language in accordance with a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . If the terms of [a contract) are clear, their meaning cannot be forced or strained by an unwarranted construction to give them a meaning which the parties obviously never intended . . . A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Citation omitted; internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn 259, 286, 757 A2d 526 (2000).
It is noted that the plaintiff's claim of unjust enrichment as to the $19,000 is dependent upon the validity of the provisions of the settlement agreement concerning the 2003/2004 school year. The plaintiff's amended complaint states, in pertinent part, "The defendants accepted the payment of $19,000 from the [plaintiff], but failed to honor the terms of the contract as the defendants commenced a due process hearing in or about June 2003 challenging the decision of the plaintiff with regard to the special education placement of the defendants' son for the 2003/2004 school year . . . By accepting the $19,000 and failing to comply with the terms of the contract, the defendants have been unjustly enriched to the detriment of the plaintiff, New Fairfield board of education." Inasmuch as the provisions concerning 2003/2004 have been found void as to the restrictions placed on the defendants, and the defendants therefore were not in breach of contract for acting against them, the plaintiff cannot maintain an action for unjust enrichment on that basis.
As there is no genuine issue of material fact with respect to the settlement agreement, the court need not address the merits of the defendants' defenses of res judicata/collateral estoppel, lack of subject matter jurisdiction, expiration of statute of limitations, or failure to exhaust administrative remedies. It is noted that, to the extent that the plaintiff seeks monetary damages for breach of contact, the plaintiff is correct to assert that there was no opportunity to raise such a claim before the department of education as the hearing officer's authority lies in deciding the appropriate educational placement for a child, rather than deciding a claim for breach of contract and awarding or denying money damages.
General Statutes § 10-76h(d)(1) provides, in relevant part: "The hearing officer . . . shall have the authority to confirm, modify or reject the identification, evaluation or educational placement of or the provision of a free appropriate public education to the child or pupil, to determine the appropriateness of an educational placement where the parent or guardian of a child requiring special education . . . has placed the child or pupil in a program other than that prescribed by the planning and placement team, or to prescribe alternative special educational programs for the child or pupil."
For the foregoing reasons, the defendants have met their burden of showing that no genuine issues of material fact exist as to the enforceability of the settlement agreement, and plaintiff has not met its burden of presenting sufficient evidence to establish a contrary result. Under the applicable principles of substantive law, the defendants' motion for summary judgment is hereby granted.
Mintz, J.