Opinion
No. CV02 039 65 13
November 20, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#108)
On May 12, 2003, the defendant, Fairfield Country Day School Corporation, moved this court to strike Counts One, Two and Five of the plaintiffs' Amended Complaint, dated February 11, 2003, as well as the Prayers for Relief for Counts One and Two. It is the defendant's position that these counts fail to state legally cognizable claims; moreover, the Prayers for Relief fail to allege the necessary claim of irreparable harm. The plaintiffs filed a Second Amended Complaint on June 16, 2003, which is substantively the same as their First Amended. The plaintiff filed a Memorandum of Law in Opposition to the Motion to Strike on July 30, 2003, and this court heard oral argument on August 14, 2003.
Facts
The plaintiffs, James Thompson, Stephanie Thompson, Martin Burger, Alayne Burger, John Gisondi, Mary Ann Gisondi, Newell Grace, and Claire Grace, all own property located on the same road on which the defendant, Fairfield Country Day School (School), is located. The complaint alleges that on approximately October 17, 1996, the defendant applied to the Fairfield plan and zoning commission (the commission) for a special exception zoning approval for certain additions and renovations it wished to make. Before filing the application, the defendant met with the plaintiffs and other neighbors several times in order to discuss the proposed plans with them and obtain their approval for the renovations. The plaintiffs allege that in response to their concerns and reservations about the project, the defendant's agents, officers, and employees orally agreed to certain "terms, covenants and conditions," including that student enrollment would not increase beyond 240 students, the number in attendance at that time and that the defendant would not further expand the buildings located on its property. In reliance on the defendant's covenants, the plaintiffs agreed to support the defendant's project. Pursuant to this agreement, the plaintiffs then submitted a letter to the commission in which they expressed support for the commission to grant the defendant's application for the project. At the hearing before the commission, the defendant stated repeatedly that it did not intend to expand again in the future, for any further expansion would not be in keeping with the historic character of the neighborhood or the educational tradition of the school. The commission approved the defendant's project and the renovations and expansion were completed.
The plaintiffs allege that since completing the project, the defendant has either breached its agreement with the plaintiffs or manifested that it intends not to perform the terms and conditions thereof. First, the defendant has increased its enrollment to 270 students. Second, the defendant filed an application for certificate of wetlands conformance with the Fairfield conservation committee as the first step in its plan to double the size of the building space on school property and raise enrollment to over 500 students.
The plaintiffs filed a five-count Second Amended Verified Complaint in June 2003. The first count alleges breach of contract against the defendant for failure to adhere to the oral agreement that the parties reached in 1996. Counts two through five allege promissory estoppel, fraudulent misrepresentation, negligent misrepresentation, and breach of the covenant of good faith and fair dealing, respectively. The defendant filed a motion to strike counts one, two and five on the ground that these claims are barred by the statute of frauds because the alleged oral agreement between the parties involved "an interest in land" and the oral agreement could not be performed within a year. The defendant also moves to strike count two on the ground that it fails to state a cause of action for promissory estoppel. In addition, the defendant moves to strike the plaintiffs' prayers for injunctive relief as to counts one and two on the ground that the plaintiffs have not alleged that they have suffered irreparable harm. The plaintiffs filed an objection to the motion in which they argue that the motion should be denied as to counts one, two and five because the statute of frauds does not apply to these circumstances. They also argue that the motion to strike count two should be denied because they sufficiently stated a claim for promissory estoppel. The defendant filed a reply memorandum of law in support of its motion to strike.
Standard of Review
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the plaintiffs, 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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
Discussion APPLICABILITY OF THE STATUTE OF FRAUDS
The defendant moves to strike counts one, two and five on the ground that they are barred by the statute of frauds. The defendant argues that its alleged oral statements that it would neither increase enrollment nor expand its size, constituted an agreement regarding an "interest in or concerning real property," thus bringing it within the statute of frauds. General Statutes § 52-550(a)(4). The plaintiffs counter that the doctrine does not apply because an oral agreement restricting the use of land does not constitute an interest in or concerning property and is not within the statute of frauds. The Connecticut case law discussing what falls within this provision of the statute of frauds in the context of a party's agreement not to use its property in a particular manner is very old and somewhat inconsistent. In 1809, the Supreme Court determined that an oral agreement to stop using one's mill on a specific date was not within the statute of frauds because "there was no transfer of any right, but only an agreement not to exercise a right. He parts with no interest to any person. There is no conveyance . . . of any interest whatever." Bostwick v. Leach, 3 Day 476, 484 (1809). The court later also found the statute of frauds did not apply to an oral agreement to refrain from selling liquor on the premises. In that case, the court expressly approved the Bostwick holding in finding that "an agreement for the sale of an interest in or an interest concerning real estate contemplates a transfer of some portion of the title." Hall v. Solomon, 61 Conn. 476, 483, 23 A. 876 (1892). These cases have been subsequently cited in other jurisdictions for the proposition that an oral restriction on land use is not barred by the statute of frauds. See Thornton v. Schobe, 79 Colo. 25, 27, 243 P. 617, 618 (1926); Rodgers v. Reimann, 227 Or. 62, 361 P.2d 101, 105 (1961).
General Statutes § 52-550(a)(4) provides that "[n]o civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . upon any agreement for the sale of real property or any interest in or concerning real property . . ."
Nevertheless, in a case involving a restriction that certain land be used only for a single-family dwelling, the court found that the government must compensate the holder of the dominant tenement when taking the restricted land for the purpose of building a school upon it. Stamford v. Vuono, 108 Conn. 359, 368, 143 A. 245 (1928). In doing so, the court noted that this holding is "based upon the theory that such a restriction is in the nature of an easement, and being an interest in the land taken is property for which compensation must be made." Id. Although the restrictive easement at issue in Vuono was written rather than oral, the court's holding evinces an intention that such restrictions are subject to the statute of frauds since they constitute an interest in land This policy is in line with the Supreme Court's subsequent determination that "when more than one interpretation is permissible restrictions upon the use of land are not to be extended by implication, [and] doubtful language will be construed against rather than in favor of the covenant." Waterbury Trust Co. v. G.L.D. Realty Co., 124 Conn. 191, 197, 199 A. 106 (1938). Clearly, if the restriction is not written down at all, its entire existence is doubtful. The Vuono holding carries out this policy more effectively than the Day and Hall line of cases, since it determines that agreements concerning restrictions on the usage of land constitute property interests, thus bringing them within the statute of frauds.
Most of the jurisdictions that have addressed this issue have held that land use restrictions constitute interests in land and come within the statute of frauds. For example, the Virginia Supreme Court held that "[a] restrictive covenant imposing a restriction upon the use of real property is an interest in land within the statute of frauds, including any restriction on the size and type of building to be constructed by the buyer on the real estate purchased." Cooper v. Re-Max Wyandotte County Real Estate, Inc., 241 Kan. 281, 291, 736 P.2d 900, 906-07 (1987), motion for cert. denied, Cooper v. Rubin, 484 U.S. 999, 108 S.Ct. 687, 98 L.Ed.2d 640 (1988). Alabama has also determined that "[r]estrictions on the use of land are . . . subject to the Statute of Frauds." Sports World, Inc. v. Neil's Sporting Goods, Inc., 507 So.2d 480, 482 (1987). See also Fleming v. Adams, 392 S.W.2d 491, 495 (Tex.Civ.App. 1965) ("restrictions upon the use of land are easements or equitable servitudes upon the land and constitute interests in land Such easements must be created by an instrument in writing satisfying the Statute of Frauds."); Belmont v. Massachusetts Amusement Corp., 333 Mass. 565, 132 N.E.2d 172, 176 (1956) ("an equitable servitude is treated as a property interest in land"); Miller v. Lawlor, 245 Iowa 1144, 66 N.W.2d 267, 272 (1954) (noting that "the claimed agreement was designed to create an interest in land within the purview of the statute [of frauds]. It contemplated the creation of a restrictive or negative easement over defendant's premises in favor of the adjoining premises . . . That would surely be an `interest.'") (citation omitted; emphasis in original); Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197, 201 (1942) (stating that "[t]he servitude imposed by restrictive covenants is a species of incorporeal right. It restrains the owner of the servient estate from making certain use of his property. It is an interest in land, conveyance of which is within the statute of frauds. Such restraint may not be effectively imposed except by deed or other writing duly registered."); Donahoe v. Marston, 26 Ariz.App. 187, 547 P.2d 39, 43 (1976) (holding that attempted oral modification of a restrictive covenant is barred by statute of frauds); Remilong v. Crolla, 576 P.2d 461, 464 (Wyo. 1978) (restrictive covenant prohibiting putting trailers on property constitutes an interest in land, and comes within statute of frauds).
The viewpoint that restrictions on the use of land come within the statute of frauds is also endorsed by the Restatement of Property, which provides that "a promise that certain land will be used in a particular way is subject to the provisions of the statute of frauds requiring promises which create interests in land to be in writing signed by the promisor." 5 Restatement, Property, Servitudes § 522(1), p. 3165 (1983). It is submitted that the better viewpoint is that a restriction on the use of land constitutes an interest in land and so the defendant's alleged agreement not to make future expansions or to increase student enrollment constituted an agreement involving an interest in land and thus was required to be in writing by the statute of frauds.
The defendant also argues that the oral agreement violated the provision of the statute of frauds that requires contracts that are incapable of being performed within one year to be in writing. Although it is unnecessary to address this claim, it should be noted that the agreement at issue was technically capable of being performed within a year and thus, does not fall within the prohibition of this particular provision of the statute of frauds. The Supreme Court has determined that "an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take." C.R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 583-84, 600 A.2d 772 (1991).
As to count five, "[i]t is axiomatic that the implied duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship." (Internal quotation marks omitted.) Celentano v. Oaks Condominium Ass'n, 265 Conn. 579, 617, 830 A.2d 164 (2003). Thus, since the contract claim fails because the statute of frauds was not satisfied, the plaintiffs' claim for breach of the covenant of good faith and fair dealing must also fail. The defendant's motion to strike counts one and five is granted, as these are contractual claims that cannot be maintained absent compliance with the statute of frauds.
In addition to alleging a claim based on promissory estoppel, the plaintiffs also argue that the claims are exempt from the statute of frauds based on the doctrine of part performance. Part performance and promissory estoppel are not separate exceptions, however, as they share the same elements. See DeLuca v. C.W Blakeslee Sons, Inc., 174 Conn. 535, 545, 391 A.2d 170 (1978). Thus, the part performance claim need not be addressed separately from the promissory estoppel claim.
The defendant errs, however, in arguing that count two of the plaintiffs' complaint stating a claim for promissory estoppel must also be stricken because the statute of frauds is not satisfied. The Supreme Court has determined that "[w]hen the Statute of Frauds is claimed, the doctrine of estoppel may be applied to prevent the use of that statute to accomplish a fraud." DeLuca v. C.W Blakeslee Sons, Inc., 174 Conn. 535, 544, 391 A.2d 170 (1978).
PROMISSORY ESTOPPEL
The defendant alternatively moves to strike count two on the ground that the plaintiffs failed to state a cause of action for promissory estoppel. "Section 90 of the Restatement Second 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. A fundamental element of promissory estoppel, therefore, 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.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). As the court is required to accept all well-pleaded claims in the complaint, the plaintiffs have met their burden of demonstrating the existence of a clear and definite promise on which the plaintiffs reasonably relied.
The plaintiffs allege that prior to applying to the commission for a special exception zoning approval in 1996, the defendant contacted its neighbors, including the plaintiffs, in order to gain their approval for the project. In the course of meeting with the defendants in 1996, the plaintiffs expressed concern that construction and completion of the project would increase traffic, noise, and pollution which would have a negative impact upon the neighborhood and the plaintiffs' respective properties. The plaintiffs allege further that in the course of numerous meetings to work out their differences, representatives of the defendant promised:
a. [t]hat there would be no future increases in the enrollment of the School which then numbered 240 students;
b. [t]hat there would not be any further expansion of the School buildings and facilities upon the School Property; and
c. [t]hat the defendant would agree to a series of terms, covenants and conditions demanded by the Plaintiffs and negotiated by the parties relating to construction details involving traffic, lighting and landscaping.
(Second Amended Verified Complaint, Count Two, ¶ 12.) Thus, taking all well-pleaded facts as true, the plaintiffs have met their burden of showing that the defendant made a clear and definite promise.
The plaintiffs have also pleaded facts sufficient to demonstrate that the defendant's promises induced them to act to their detriment. The plaintiffs go on to allege that the promises induced them to refrain from opposing the project, to express support for the project in front of the commission, and, to refrain from appealing the commission's approval of the application. In accordance with the oral agreement with the plaintiffs, at a hearing before the commission, the defendant consistently asserted that it did not intend to increase its enrollment or further develop the School property and that an expansion would not be consistent with the historic character of the neighborhood or the educational tradition of the School. The plaintiffs allege that they relied on these statements and upheld their part of the agreement by presenting a letter to the commission in which they expressed their support for the permit the defendant sought subject to the commission's imposition of the agreed-upon terms. The commission approved the defendant's application, but only after "[imposing] the terms and conditions agreed to by the parties." (Second Amended Verified Complaint, Count Two, ¶ 19.) In reliance upon their agreement with the defendant, the plaintiffs allege that they continued to abide by the agreement and did not exercise their right to appeal the commission's decision to grant the permit to the defendant. The plaintiffs allege that the defendant "has failed to honor various of the terms, covenants and restrictions agreed to by the parties and imposed by the . . . Commission." (Second Amended Verified Complaint, Count Two, ¶ 24.) They allege further that the defendant has already increased enrollment to 270 students and that the defendant has filed an application that represents the first step in a proposed expansion that would increase enrollment to 500 students and would nearly double the area of building space on the property.
The Supreme Court has further stated that the acts induced by the defendant's promises "must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute." DeLuca v. C.W. Blakeslee Sons, Inc., supra, 174 Conn. 545. Based on the allegations in the plaintiffs' complaint, the plaintiffs' presentation of the letter to the commission, as well as their failure to exercise their right to appeal the commission's decision, cannot be naturally or reasonably accounted for in the absence of a contract with the defendant. The plaintiffs allege that they were initially opposed to the defendant's expansion proposal and only gave their approval after a series of meetings with the defendant's representatives, in which the defendant agreed to abide by specific terms and conditions. Even when they presented their letter in support of the project to the commission, they did so with the caveat that their approval was conditioned on the imposition of the terms, covenants, and restrictions which the parties had agreed upon. Thus, the complaint sufficiently alleges that the defendant's promises induced the plaintiffs' reliance and that the defendant should have known that its promises would induce such reliance.
The complaint also sufficiently alleges that injustice can be avoided only by enforcement, despite the defendant's contention to the contrary. The defendant claims that it is speculative whether the plaintiffs would have opposed the project or appealed the commission's granting of the permit in the absence of the oral promises to restrict enrollment and future expansion, in light of the fact that the defendant agreed to the terms and conditions regarding lighting, landscaping and parking, all of which were incorporated into the commission's grant of the permit to the defendants. This argument fails because the facts as alleged must be taken as true and the plaintiffs have asserted in their complaint that they would not have given their approval without all of the aforementioned promises by the defendant.
The defendant also argues that the plaintiffs have failed to show that injustice can be avoided only by enforcement of the promises, due to the fact the plaintiffs have not demonstrated that the commission would not have granted the defendant's permit application if the plaintiffs had opposed the project. The plaintiffs, however, allege that the commission conditioned its approval by imposing the terms of the parties' agreement on the defendant. They allege further that since completion of the project, the defendant has failed to abide by some of the agreed-upon terms. Clearly, assuming the truth of the well pleaded facts, injustice can be avoided only by enforcement of the agreement, as the commission's grant of the special exception permit was conditioned on the defendant abiding by those terms, covenants, and restrictions. Therefore, count two of the plaintiffs' complaint alleges facts sufficient to support a cause of action for promissory estoppel. Accordingly, the defendant's motion to strike the second count of the plaintiffs' complaint is denied, for the allegations in count two sufficiently state a cause of action for promissory estoppel.
PRAYER FOR RELIEF
The defendant also moves to strike the plaintiffs' prayer for relief in count two, on the ground that the plaintiffs have failed to allege that there is no adequate remedy at law or that they have suffered irreparable harm, and therefore they are precluded from receiving injunctive relief. "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "The questions of irreparable harm and availability of an adequate remedy at law are threshold issues which the court must consider before it can determine whether injunctive relief is warranted . . . A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . ." (Citations omitted; internal quotation marks omitted.) Scinto v. Sosin, 51 Conn. App. 222, 245, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).
The defendant also moves to strike the prayer for injunctive relief as to count one of the plaintiffs' complaint. As count one has already been stricken, this issue is moot and need not be addressed.
The plaintiffs make conclusory allegations that the defendant's conduct has caused them to suffer irreparable injury, that they have no adequate remedy at law, and that injustice can be avoided only if the court enforces the defendant's promises. This alone does not constitute sufficient pleading, for the Supreme Court has determined that "[t]he plaintiffs must allege facts which, if proven, would establish irreparable injury and assume the burden of proving facts which will establish substantial and irreparable damage if they are to prevail in their request for injunctive relief." Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971). "Irreparable injury is injury which cannot be adequately compensated in damages or cannot be measured by a pecuniary standard." Murchison v. Civil Service Commission, Superior Court, judicial district of Waterbury, Docket No. CV 95 0128677 (January 11, 1996, Vertefeuille, J.) ( 16 Conn. L. Rptr. 16).
In support of their prayer for injunctive relief, the plaintiffs also allege that the defendant's proposed expansion will increase traffic, noise, congestion, and pollution which will adversely impact the value of their land and impair their use and enjoyment of their properties. In addition, the plaintiffs allege that the project is not appropriate in a historic area and not in keeping with the rural nature of the area. These facts are sufficient to allege irreparable harm and lack of an adequate remedy at law. Clearly, the allegation that the use and enjoyment of the plaintiffs' property will be adversely affected by the increased traffic, congestion, and pollution constitutes a claim for irreparable injury that cannot be cured by legal damages. In fact, "[t]hose Supreme Court cases which have considered and affirmed the trial court's finding of special harm [in cases involving land use] have uniformly cited to and relied on conditions that interfere with the plaintiff's use and enjoyment of the property in question." Northeast Parking v. Plumridge, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 95 0466606 (June 14, 1999, Holzberg, J.). See Blum v. Lisbon Leasing Corp., 173 Conn. 175, 178, 377 A.2d 280 (1977) (affirming grant of injunctive relief for conditions "which tended to destroy the plaintiffs' use and enjoyment of their properties"); Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975) (affirming grant of injunction because increased traffic caused by defendants' improper use of their land substantially interfered with plaintiffs' enjoyment of their property); Cummings v. Tripp, 204 Conn. 67, 90-91, 527 A.2d 230 (1987) (no abuse of discretion in granting injunction when trial referee found that "the defendants' use of the property has caused the plaintiffs much annoyance, personal inconvenience and irritation"). The plaintiffs sufficiently allege facts in their complaint which, if proven, would allow a court to grant injunctive relief, so the defendant's motion to strike the plaintiffs' prayer for injunctive relief is denied.
CONCLUSION
Accordingly, the defendant's motion to strike count one of the plaintiffs' complaint is granted, because that count was for breach of an oral contract concerning an interest in land That count fails because such contracts are required to be in writing under the statute of frauds. Count five is also stricken, because a claim for breach of the implied covenant of good faith and fair dealing cannot stand if the contract on which the claim depends fails due to noncompliance with the statute of frauds. Further, defendant's motion to strike count two is denied, because the plaintiffs sufficiently stated a cause of action for promissory estoppel and such claims are not barred by noncompliance with the statute of frauds. Finally, the defendant's motion to strike the plaintiffs' prayer for an injunction is denied because the plaintiffs have alleged facts that indicate that they will be irreparably harmed and are without an adequate remedy at law, if the defendant goes forward with the planned expansion.
WOLVEN, JUDGE.