Opinion
No. X07 CV 06 5001791 S
September 10, 2008
MEMORANDUM OF DECISION
I A.
On December 23, 2005, the plaintiffs, Wanda Siemiatkoski and Eugene Siemiatkoski, filed the instant action alleging that the codefendants, Windsor Federal Savings and Loan Association (bank), together with its president, Mark Griffin, and its vice-president, Gary Roman (collectively, the bank defendants), along with the town of Windsor and its mayor, Donald Trinks (collectively, the town defendants), acted unlawfully to frustrate the plaintiffs' attempt to purchase a certain parcel of land in Windsor. The plaintiffs' complaint alleges eight counts: breach of fiduciary duty against the bank defendants; breach of the covenant of good faith and fair dealing and violation of General Statutes §§ 42a-1-103 and 42a-1-203 against the bank; defendants; violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. against the bank tortious interference with business relations against all defendants; tortious interference with contractual relations against all defendants; fraud against the bank defendants; violations of due process rights under the fourteenth amendment to the United States constitution and 42 U.S.C. §§ 1983 and 1988 against the town defendants; and conspiracy to violate the plaintiffs' due process rights against all defendants.
On or around January 10, 2006, the defendants removed the action to federal court. The defendants filed motions for summary judgment and, on June 28, 2007, the court, Covello, J., granted the motions as to the federal causes of action, declined to rule on the state causes of action and remanded the matter to this court. After further briefing, the court heard oral argument on the motions for summary judgment as to the remaining state claims on June 2, 2008.
At the hearing, the plaintiffs conceded, despite their argument in their March 14, 2008 supplemental memorandum in opposition to the motions for summary judgment, that the §§ 1983 and 1988 due process issues were resolved by Judge Covello and further litigation of these counts is barred by the principles of res judicata and/or collateral estoppel. The plaintiffs also acknowledged in the same memorandum, at footnote 2, that they were no longer pursuing any claims against Trinks in his individual capacity. Accordingly, the court granted summary judgment in his favor at the hearing. Finally, the plaintiffs acknowledged that they were withdrawing the fraud count. Thus, this memorandum addresses the remaining claims, i.e., breach of fiduciary duty, breach of the covenant of good faith and fair dealing, tortious interference and violation of CUTPA.
B.
In its June 28, 2007 memorandum of decision, the district court set forth the factual background of this case.
In August 2003, the Siemiatkoskis began negotiations with the Vintage Radio and Communications Museum of Connecticut, Inc. ("Radio Museum") regarding the purchase of a piece of real property located at 33 Mechanic Street, Windsor, Connecticut ("Mechanic Street property"). The Siemiatkoskis hoped to develop the property into an antiques and collectibles mall that would house shops, a meeting hall, a food court, and limited manufacturing facilities.
The Radio Museum owned the Mechanic Street property subject to a right of first refusal held by First Town Downtown, Inc. ("First Town"). First Town is a nonprofit corporation whose mission is "to position and promote Windsor center as a premiere New England town center." Pursuant to its right of first refusal, First Town had "the option to purchase the [Mechanic Street] Property for the amount of any bona fide offer made by a third party. The option for [First Town] to purchase . . . shall extend for a period of sixty . . . days after notice of such bona fide offer has been communicated to [First Town] by [the Radio Museum]. Notice shall be in writing and include a copy of the written offer to purchase executed by the proposed buyer." At the time the Siemiatkoskis were negotiating with the Radio Museum, they were aware of the right of first refusal, which was recorded in the land records at the Windsor town hall.
On August 30, 2003, the Siemiatkoskis submitted a written offer to purchase the Mechanic Street property for $100,000, and provided the Radio Museum with a $500 deposit. On September 17, 2003, the Siemiatkoskis submitted a second offer to purchase the Mechanic Street property, this time for $130,000. On September 23, 2003, the Radio Museum wrote to accept the second offer subject to three conditions: 1) "Approval of the sale by John Moynahan," the Radio Museum's mortgagee; 2) "Approval by First Town Downtown (holder of right of first refusal)"; and 3) "Successful negotiation between our lawyers over language of agreement."
Thereafter, the secretary of the Radio Museum, one Chris Watts, telephoned the president and executive director of First Town, one Meredith Mosely. Watts informed Mosely of the Siemiatkoski's offer, and asked First Town to consider waiving its right of first refusal. In response, Mosely expressed disappointment at the prospect of the sale.
On October 3, 2003, the Siemiatkoskis notified the Radio Museum in a letter that several `issues' . . . had `surfaced' relating to the proposed sale and development of the property. Specifically, the Siemiatkoskis noted that the "Fire Marshall is concerned about access to the property." Further, "[t]he Planning Department is concerned over increased traffic into the area and the need for a zoning change." Third, the Siemiatkoskis were concerned about the lack of access to the property from public roads, and "the potential legal/health liability due to the various materials that are underground and in the building," which the Siemiatkoskis characterized as a "major roadblock." The Siemiatkoskis concluded the letter by stating that "[t]hese issues must be resolved to our satisfaction prior to proceeding."
On October 6, 2003, Watts sent by facsimile to Mosely copies of correspondence between the Siemiatkoskis and the Radio Museum, detailing the Siemiatkoskis' proposal. On October 17, 2003, after Mosely asserted that she did not receive the earlier facsimile, Watts again sent the documents.
On November 17, 2003, the Windsor town council held a meeting at which participants discussed the possibility of appropriating funds to First Town to permit it to exercise its right of first refusal. On December 2, 2003, the board of directors of First Town agreed to notify the Radio Museum that it would be exercising its right of first refusal, provided that the Town of Windsor made sufficient funds available. On December 15, 2003, or fifty-nine days after First Town first received written notice of the proposed sale, the Windsor town council appropriated $180,000 to permit First Town to exercise its option to purchase the property.
First Town never purchased the property, however. Further, in the ensuing year, although the Siemiatkoskis and Radio Museum continued to negotiate the terms of the proposed transaction, they ultimately never completed the sale of the Mechanic Street property.
The plaintiffs argue that the district court's opinion is incorrect in finding that First Town exercised its right of first refusal in a timely manner, i.e., "fifty-nine days after First Town first received written notice of the proposed sale." The question of whether the right was timely exercised is essentially irrelevant to the issues addressed herein. Furthermore, collateral estoppel bars the plaintiffs from relitigating this issue. See East Lyme v. Waddington, 4 Conn.App. 252, 255, 493 A.2d 903, appeal dismissed, 197 Conn. 811, 499 A.2d 61 (1985) ("[c]ollateral estoppel is that aspect of the doctrine of res judicata which serves to estop the religitation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction." [Internal quotation marks omitted]). Consequently, this memorandum of decision does not address the issue.
Siemiatkoski v. Windsor Federal Savings Loan Ass'n., United States District Court, Docket No. 3:06CV0048 (D.Conn. June 28, 2007).
In addition to the district court's findings, the following facts are essentially undisputed and relevant here. On September 3, 2003, the plaintiffs spoke with Griffin at a social gathering and had a three-to five-minute conversation about possibly securing a loan from the bank to purchase the property; Griffin referred the plaintiffs to Roman. The plaintiffs met Roman for about one hour on September 19, 2003 to discuss the possibility of obtaining a loan to purchase the property. The plaintiffs never filled out a loan application, never applied for a loan with the bank and never spoke with anyone from the bank about the property again.
Griffin was an ex-officio member of First Town's board of directors and Roman was a member of the board in addition to his role as chairperson of economic development. Neither individual ever disclosed their involvement with First Town to the plaintiffs. On September 23, 2003, Chris Watts and John Ellsworth, on behalf of the Radio Museum, wrote a letter informing James Burke, Windsor's economic development director, of its intention to sell the property to the plaintiffs and their proposed use of the property.
The plaintiffs allege that they first became aware of the bank defendants' association with First Town on December 16, 2003.
The town council held executive sessions on November 17, 2003 and December 15, 2003: Roman attended these meetings as a representative of First Town. On December 15, 2003, following the executive session, the town council held a public meeting and voted to appropriate $180,000 to First Town so that it could exercise its right of first refusal.
II
"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 . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 390, 949 A.2d 450 (2008). "The party seeking summary judgment has the burden of presenting evidence showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law, and the party opposing the motion must provide an evidentiary foundation to demonstrate that a genuine issue over a material fact actually exists." Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).
III A.
In the first count of the plaintiffs' complaint, they allege that the bank defendants owed the plaintiffs a fiduciary duty to disclose the bank defendants' involvement with First Town. The bank defendants argue in their motion for summary judgment that they did not have a fiduciary relationship with the plaintiffs. In response, the plaintiffs argue that a fiduciary relationship existed because, in addition to the two conversations between the plaintiffs and Griffin and Roman, they had a checking account with the bank beginning in January 2003, and a mortgage loan through the bank that was paid off in August 1993.
The plaintiffs also allege that the bank defendants owed them a fiduciary duty to keep confidential any information provided by the plaintiffs to the bank defendants as to the plaintiffs' plans for the property. There is, however, no allegation and no evidence to suggest that the bank defendants did not keep the plaintiffs' information confidential. Indeed, in paragraph sixty-one of the plaintiffs' federal rule 56(a)(2) statement in objection to the bank defendants' motion for summary judgment, the plaintiffs admit that there is no evidence that Roman disclosed the plaintiffs' concept to anyone before the Radio Museum informed the town and First Town of the plaintiffs' proposal.
"It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them. [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . .
"Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another.
"In the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." (Citation omitted; emphasis in original; internal quotation marks omitted.) Biller Associates v. Peterken, 269 Conn. 716, 723-24, 849 A.2d 847 (2004).
"The mere fact that an account holder has deposited funds into a bank does not automatically create a fiduciary relationship between the hank and the customer." Marino v. Bank of America, N.A., Superior Court, judicial district of Litchfield, Docket No. CV 07 5001571 (July 11, 2007, Pickard, J.) (43 Conn. L. Rptr. 751, 752). "Generally there exists no fiduciary relationship merely by virtue of a borrower-lender relationship between a bank and its customer." Southbridge Associates, LLC v. Garofalo, supra, 53 Conn.App. 19. In fact, "[a] lender has the right to further its own interest in a mortgage transaction and is not under a duty to represent the customer's interest." Id. Hence, to prove the existence of a fiduciary relationship, the plaintiffs must prove something more.
"A fiduciary duty may arise only in exceptional circumstances, such as when there is a long history of dealings between the parties and the bank acts as an advisor or when the bank gains the confidence of the account holder." Marino v. Bank of America, N.A., supra, 43 Conn. L. Rptr. 752; see also Krondes v. Norwalk Savings Society, Superior Court, judicial district of Fairfield, Docket No. CV 91 0288829 (April 3, 1995, Cocco, J.) (discussing examples of exceptional circumstances). "[A] bank, as a mortgagee lender, may be the fiduciary of the mortgagor borrower when the bank becomes the borrower's financial advisor." Southbridge Associates, LLC v. Garofalo, supra, 53 Conn.App. 18.
In the present case, this court cannot find that a fiduciary relationship was formed as a result of the plaintiffs' brief interactions with Griffin or Roman. Indeed, the plaintiffs admit that they never filled out the loan application, never applied for a loan with the bank and never spoke with anyone from the bank about the property after the plaintiffs' one-hour conversation with Roman. Additionally, the plaintiffs' previous loan and checking account do not constitute exceptional circumstances giving rise to a fiduciary relationship. See id., 18-19 (finding that trial court properly concluded that only ordinary debtor-creditor relationship existed despite debtor's testimony that he had continuous and extensive financial dealings with bank for more than ten years); see also Marino v. Bank of America, N.A., supra, 43 Conn. L. Rptr. 752 (striking breach of fiduciary duty count because depositing of funds in multiple accounts over many years did not give rise to exceptional circumstances). Furthermore, the plaintiffs do not allege nor do they point to any evidence of a relationship in which the bank might have become the plaintiffs' financial advisor or of an intent by the bank defendants to act with the plaintiffs' interests in mind. Thus, this court finds that no fiduciary relationship existed between the plaintiffs and the bank defendants.
Even if the plaintiffs could establish the existence of a fiduciary relationship, they still must prove the purported breach of that duty. "[W]here a bank becomes involved in a transaction with a customer with whom it has established a relationship of trust and confidence, and it is a transaction from which the bank is likely to benefit at the customer's expense, the bank may be found to have assumed a duty to disclose facts to the transaction, peculiarly within its knowledge and not otherwise available to the customer." (Emphasis in original; internal quotation marks omitted.) Krondes v. Norwalk Savings Society, supra, Superior Court, Docket No. 91 0288829, quoting Barnett Bank of West Florida v. Hooper, 498 So.2d 923, 925 (Fla. 1986). Here, it is undisputed that the plaintiffs knew that First Town had a right of first refusal before they talked to Griffin or Roman and that membership of First Town was publicly available.
Additionally, the plaintiffs must prove that the breach — the nondisclosure of the bank defendants' affiliation with First Town — caused their damages. In other words, they must prove cause in fact by showing that they would not have suffered the alleged damages were it not for the bank defendants' actions. See Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 32, 946 A.2d 839 (2008) ("[t]he test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct" [internal quotation marks omitted]). "[I]f the plaintiff's injury would have occurred regardless of the defendant's conduct, then the defendant's conduct was not a cause in fact of the plaintiff's injury." Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995).
In the present case, the plaintiffs cannot prove cause in fact. First, and foremost, they failed to consummate their purchase agreement with the Radio Museum — the Radio Museum had conditions and the plaintiffs added more conditions that the parties never resolved. Second, even assuming the plaintiffs had a valid contract with the Radio Museum, it is undisputed that First Town had the right to purchase the property before the plaintiffs. Third, there is, as mentioned before, no allegation or evidence of improper disclosure by the bank defendants. The actual disclosure of the plaintiffs' intent to purchase was made by the Radio Museum to both First Town and the town, which, of course, the Radio Museum was required to reveal because of First Town's right of first refusal. See Homes of Westport, LLC v. The Wilton Bank, Superior Court, judicial district of Fairfield, Docket No. CV 06 0403842 (October 2, 2007, Maiocco, J.T.R.) (finding that plaintiff failed to prove that losses were caused by bank because confidential information alleged to be disclosed by bank was already known to third party). Fourth, there is no allegation or evidence that First Town would not have exercised its right of first refusal if the plaintiffs had not had the conversation with Griffin and Roman. Therefore, the plaintiffs are simply unable to prove that the bank defendants' omissions caused their damages because the plaintiffs' alleged injury would have occurred regardless of the bank defendants' nondisclosure. Consequently, the bank defendants' motion for summary judgment as to this count is granted.
B.
In the second count of the complaint, the plaintiffs allege that the bank defendants violated the covenant of good faith and fair dealing and General Statutes §§ 42a-1-103 and 42a-1-203. "[T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). In this case, there is no contract between the bank and the plaintiffs as they never applied for a loan. Thus, the bank defendants' motion for summary judgment as to this count must be granted.
Section 42a-1-103, in relevant part, provides, "(a) This title shall be liberally construed and applied to promote its underlying purposes and policies, which are . . . (b) Unless displaced by the particular provisions of this title, the principles of law and equity . . ."
Section 42a-1-203, now General Statutes § 42a-1-304, provides, "Every contract or duty within this title imposes an obligation of good faith in its performance and enforcement."
The statutory Uniform Commercial Code (UCC) violations are also premised on the existence of a contract. See footnote 5.
C. 1. CT Page 14703
The plaintiffs allege in the fourth and fifth counts of their complaint that all of the defendants have tortiously — "maliciously, willfully or improperly" — interfered with the plaintiffs' business and contractual relations as to the Radio Museum thereby causing them damages. In the bank defendant's motion for summary judgment, they argue that they are entitled to summary judgment on these counts because the only tort alleged in the plaintiffs' complaint is breach of fiduciary duty. Because they are not liable under this count, they assert that the conduct alleged cannot be the basis for the tortious interference count. Without providing any factual support or analysis, the plaintiffs argue in their memorandum in opposition to the bank defendants' motion for summary judgment that they "have provided sufficient evidence to demonstrate the existence of the elements of both tortious interference claims."
"It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000). Similarly, "[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." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).
Our Supreme Court "has long recognized a cause of action for tortious interference with contract rights or other business relations . . . While our cases have not focused with particularity on what acts of interference are tortious, we have made it clear that not every act that disturbs a contract or business expectancy is actionable . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." (Citations omitted; internal quotation marks omitted.) Blake v. Levy, 191 Conn. 257, 260-61, 464 A.2d 52 (1983). In Blake, the court rejected the plaintiff's argument that in his cause of action, premised on a prior suit that settled, he need only plead the existence of a business relationship, the defendant's interference and the resulting loss. Id., 262. The court stated, "the better reasoned approach requires the plaintiff to plead and prove at least some improper motive or improper means." Id. "Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908-09, 772 A.2d 601 (2001).
The plaintiffs' tortious interference claims are predicated on the same facts as the breach of fiduciary duty count. The fourth and the fifth counts allege only that "[t]he defendants' actions . . . were maliciously, willfully and/or improperly designed to prevent the plaintiffs from purchasing the Mechanic Street property, and/or to interfere with their business relationship [or contractual relationship in count five] with the Radio Museum" and that "[a]s a direct result of the defendants' actions, the plaintiffs suffered damages . . ." Otherwise, the counts incorporate by reference the facts from the first count.
Construing the facts of the first count favorably to the plaintiffs, there are only two actions by the bank defendants that could possibly be considered tortious conduct: (1) the bank defendants did not disclose their membership in First Town; and (2) Roman attended two executive session meetings after which the town council voted to loan money to First Town so that it could exercise its right of first refusal. As explained above, the bank defendants' nondisclosure is not tortious conduct as it does not constitute a breach of fiduciary duty because no fiduciary relationship existed between the bank defendants and the plaintiffs. Additionally, Roman's attendance at the executive session meetings, without more, cannot be considered tortious. The plaintiffs allege no facts and provide no evidence to establish that Roman's attendance was somehow tortious. Thus, the court concludes that there is no evidence from which a reasonable fact finder could find that the alleged interference resulted from the bank defendants' commission of a tort. As a result, the bank defendant's motion for summary judgment as to these counts is granted.
The plaintiffs contend that these meetings were illegal. At oral argument, the plaintiffs' counsel stated that the freedom of information commission dismissed the plaintiffs' complaint as it was untimely filed.
The plaintiffs also allege in the first count that Roman "agreed" at these meetings "to obtain" municipal funds from the town for First Town in order to prevent the sale of the property to the plaintiffs. The plaintiffs cite no legal authority for the proposition that Roman's agreement to accept a loan from the town was tortious. Furthermore, Roman had no ability to obtain municipal funds unless the town council appropriated them and the plaintiffs do not allege any undue influence.
Furthermore, as explained above, there is no evidence from which a reasonable fact finder could find that the plaintiff's alleged damages occurred as a result of interference by the bank defendants. First Town's exercise of the right of first refusal, and, therefore, the plaintiffs' loss, would have occurred regardless of the bank defendants' nondisclosure or Roman's attendance at the executive sessions meetings. Indeed, the plaintiffs do not allege or argue otherwise. The most that the evidence submitted reveals is Eugene Siemiatkoski's deposition testimony that the plaintiffs would not have gone to the bank to obtain a loan if Griffin disclosed his involvement in First Town. Additionally, Wanda Siemiatkoski testified that the plaintiffs would have immediately ended their meeting with Roman if he had disclosed his involvement in First Town. Nevertheless, the plaintiffs fail to explain how the immediate termination of the meeting, or never having the meeting in the first place, or Roman not attending the executive sessions, would have resulted in a different outcome for the plaintiffs.
2.
Counts four and five are also brought against the town defendants. The town has municipal immunity. See Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003) ("the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity" [internal quotation marks omitted]). The plaintiffs have failed to allege any statute which abrogates that immunity. See Caruso v. Milford, CT Page 14705 75 Conn.App. 95, 102, 815 A.2d 167 ("the defendant is entitled to notice of any statute on which the plaintiffs rely to defeat governmental immunity so as to avoid unfair surprise and to allow time to prepare a defense"), cert. denied, 263 Conn. 907, 819 A.2d 838 (2003). Additionally,"[t]he plaintiffs cannot rely on the defendant's citation to § 52-557n as a special defense as serving to apprise the defendant of the exact statutory basis of the plaintiffs' claim." Id.
While General Statutes § 52-557n(a)(2) was mentioned by the plaintiffs' counsel during oral argument, nothing in the statute abrogates the town's immunity in this case. Indeed, to the extent the town might have to indemnify an employee for a negligent act pursuant to General Statutes § 7-465, both § 52-557n(a)(2) and § 7-465 preclude responsibility if the employee was engaged in a wilful, wanton or malicious act. See West Haven v. Hartford Ins. Co., 221 Conn. 149, 156, 602 A.2d 988 (1992) ("[t]he plain and unambiguous language of § 7-465 provides that a municipality is not obligated to pay damages if the employee was acting in a wilful or wanton manner"). Wilful, wanton and/or malicious conduct is exactly what the plaintiffs allege here. Nevertheless, the plaintiffs have withdrawn their claims against Trinks individually and do not assert any claims against other individuals associated with the town. Instead, the plaintiffs' counsel argued to this court at the hearing that the plaintiffs are suing "the town itself acting in its official capacity to do something, which intends to injure someone."
Section 52-557n(a)(2) provides: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Section 7-465(a), in relevant part, provides: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . ."
Plaintiffs' counsel confirmed at oral argument, "I'm only claiming [liability] under [§ 52-557n(a)(2)(A)], where the alleged acts involve either malice, wantonness, or intent to injure rather than negligence."
It is noted that no evidence suggests that the town defendants' actions in connection with a financing package for First Town were malicious or intended to injure the plaintiffs. The town's plans dating back to the 1970s indicated that the property should be developed as residential or office-type use. A consultant retained by First Town recommended that the highest and best use of the property would be market-rate, residential condominiums. The town assisted the Radio Museum in trying to market the property in 2002 and 2003 to developers. In a letter dated September 23, 2003, the Radio Museum notified James Burke, economic development director of the town, of the proposed sale to the plaintiffs. In October 2003, the plaintiffs met with Burke concerning their plans. On November 17, 2003 and on December 1, 2003, in executive sessions, the town council discussed the plaintiffs' purchase and the appropriation of funds to First Town. The town council voted on December 15, 2003 to authorize the town manager to appropriate up to $180,000 to First Town so that it could acquire the property, presumably to resell it to a developer who would make it available for housing. In 2005, after the termination of the plaintiffs' negotiations, and with First Town's waiver of the right to first refusal, the Radio Museum sold the property for $360,000 to a developer that is now constructing housing on the property.
The plaintiffs assert that because discussions took place in executive session malice is deemed to be proven, but provide no legal authority for this argument. They have failed to provide any other factual basis for their tortious interference claims against the town defendants. As a result, the town council's discussion and vote to provide funds to accomplish a long standing goal cannot, without more, be considered tortious.
In O'Connor v. Board of Education, 90 Conn.App. 59, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005), the court found that such an argument was unavailing. The plaintiff argued that the statutory provisions of § 52-557n(a)(2) applied only to the intentional torts of employees, but not to the conduct of municipalities. Id., 65-66. The court found that "[i]t is axiomatic that government subdivision can act only through natural persons as its agents or employees" and that "although § 52-557n codified portions of the law on immunity available to municipalities, the statute overrode the common-law rule by providing immunity for wilful and wanton acts." Id., 66. Ultimately, the court decided that the trial court improperly failed to set aside the verdict for the plaintiff because the defendant was undisputedly a municipality and because the protection of § 52-557n(a)(2) was available to the municipal defendant as a matter of law. Id.
In the present case, the town is undisputedly a municipality and § 52-557n(a)(2) provides immunity from liability for its allegedly tortious acts. Therefore, the town defendants' motion for summary judgment is granted.
D.
In the third count of the complaint, the plaintiffs allege that the bank defendants' actions also constituted a violation of CUTPA. The bank argues that the plaintiffs' CUTPA count cannot be maintained as it is arises from and is contingent upon the viability of the alleged breach of fiduciary claim. The plaintiffs respond that they have set forth sufficient facts to demonstrate the existence of a fiduciary duty.
"[General Statutes §] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission 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 businesspersons] . . . 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 . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice." (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).
"Whether a practice is unfair and constitutes a violation of CUTPA is a question of fact." (Internal quotation marks omitted.) Kendall v. Amster, 108 Conn.App. 319, 328, 948 A.2d 1041 (2008). Nevertheless, the legal sufficiency of the allegations of the CUTPA claim as independent from the alleged breach of fiduciary duty is a question of law. See Edmands v. CUNO, Inc., 277 Conn. 425, 449, 892 A.2d 938 (2006) (finding that legal sufficiency of allegations of CUTPA and fair dealing claims as independent from alleged violation of franchise act is question of law). As stated above, the first count of the complaint alleged essentially two actions by the bank defendants: (1) they did not disclose their membership in First Town; and (2) Roman attended two executive session meetings at which the town council discussed loaning funds to First Town so that it could exercise its right of first refusal. The complaint incorporates by reference the allegations from the first count into the other counts of the complaint, including the CUTPA violation.
"Turning to the legal requirements of a CUTPA claim, the plaintiffs must establish that the defendant engaged in `unfair or deceptive acts or practices in the conduct of any trade or commerce.' . . . It is not necessary that the conduct at issue violate some other law to constitute a CUTPA violation, but the plaintiffs must prove wrongful conduct." (Citation omitted.) Id., 450.
Insofar as the CUTPA count relies upon the breach of fiduciary duty count, this court has found that there was no fiduciary relationship between the parties and, therefore, no breach of fiduciary duty. Additionally, the plaintiffs have presented no evidence that Roman's attendance at the executive session was tortious or wrongful conduct. Without more than the allegations enumerated above and the evidence submitted by the parties, this court cannot find that the plaintiffs have alleged a viable CUTPA claim. See id., 450-51; see also Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 751 (2d Cir. 1998) (affirming trial court's dismissal of CUTPA claim insofar as it was based upon allegations of breach of confidential relationship and misappropriation of trade secrets).
Furthermore, "in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, `as a result of' this act, the plaintiff suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff . . . With regard to the requisite causal element, it is axiomatic that proximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act . . . Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion." (Citations omitted; emphasis in original; internal quotation marks omitted.) Stevenson Lumber Co-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 214, 932 A.2d 401 (2007). As discussed above, even if the bank or its agents' actions were under some legal theory improper, there is no proof that the bank defendants' failure to disclose their connection to First Town or that Roman's attendance at the executive session meetings caused any of the plaintiffs' alleged injuries.
IV
For the foregoing reasons, the court grants the defendants' motions for summary judgment on all counts and enters judgment for the defendants.