Opinion
No. CV030070407
November 10, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE #103
I FACTS
The plaintiffs, Gregg and Theresa Wilcox, filed a revised complaint on June 12, 2003 alleging in six counts that the Town of Sterling, the Sterling Board of' Education and the superintendent of Sterling schools (collectively "defendants") had breached their agreement to authorize and pay the tuition for the plaintiffs' son, Jordan Wilcox, to attend Griswold High School. On June 23, 2003, the defendants, jointly, filed a motion to strike the fifth and sixth counts of the revised complaint and paragraphs 2, 3 and 4 of the revised demand for relief. Specifically, the defendants move to strike on the basis that the "allegations [in the fifth and sixth counts] fail to state a claim upon which injunctive relief can be granted." As required by Practice Book § 10-42, the defendants have filed a memorandum in support of the motion to strike, and the plaintiffs have timely filed a memorandum in opposition.
The complaint rises from the fact that the town of Sterling does not maintain a secondary school for its residents. Rather than provide its own secondary school, Sterling has arranged to provide free secondary education to its residents at Plainfield High School. In accordance with the General Statutes, the Sterling Board of Education has contracted with the town of Plainfield and named Plainfield High School as Sterling's "designated high school." Additionally, Sterling has instituted Policy 6150(a), "Attendance at Non-Designated Public High School," for those students who wish to attend a high school other than Plainfield High School or a private institution. Under Policy 6150(a):
The Board of Education will make reasonable efforts to accommodate the requests of parents/guardians for their child or children to attend a secondary school other than Plainfield High School, within the confines and limits of the existing contract between the Sterling and Plainfield Boards of Education and subject to the provisions listed below:
1. Subject to student acceptance and registration at a high school other than Plainfield High School, and Board approval, the Sterling Board of Education agrees to pay the tuition to the non-designated high school on behalf of the student . . . The Board will consider waiver requests for the following high schools: Killingly; Norwich Free Academy; and Woodstock Academy, but only to the extent allowable under the Sterling-Plainfield contractual obligations and space availability as determined by administration for Killingly High School, Norwich Free Academy and Woodstock Academy.
. . .
3. Parents or guardians of eighth grade students must request in writing, using the approved waiver form of the Board of Education, for their child/children to go to a public high school other than the designated one. Such a request must be made by the second Tuesday in January and acted upon the Board at its regular January meeting.
4. Following approval by the Board, the Superintendent will issue a letter authorizing the student to attend the non-designated high school.
5. Parents or guardians of students in grades nine through twelve must complete a yearly waiver agreement . . . If a waiver is not received by the second Tuesday in January, the student will be considered a Plainfield High School student, regardless of school attended the previous year.
Sterling Board of Education, Policy 6150(a), October 17, 2000. The Sterling-Plainfield contract term pertaining to the present case requires that Sterling send 80 percent of its eligible students to Plainfield High School. In order to comply with this contract obligation, and thus limit to 20 percent the number of eligible students that do not attend Plainfield High School, the Sterling Board of Education conducts a random lottery each January to select which eighth grade students will be approved for the waiver to attend a non-designated high school.
In the present case, the plaintiffs allege that they followed the required procedure and submitted a 6150(a) waiver form to initiate the process that would permit the plaintiffs' son to attend Griswold High School. It is further alleged that the Sterling Board of Education voted to allow Jordan to enter the waiver lottery and that he was subsequently chosen as one of three students that would be approved to attend a non-designated high school for the 2001-2002 school year. It is then alleged that following the lottery drawing the superintendent refused to issue a letter authorizing Jordan's attendance at Griswold High School for the 2001-2002 school year. The plaintiffs further assert that at no time during the 2001-2002 school year did the Sterling Board of Education pay Jordan's tuition to Griswold High School as required by Policy 6150(a) for a student that is approved to attend a non-designated high school. Consequently, the plaintiffs had to pay Jordan's tuition from their own funds, and allege that the Board of Education has been unjustly enriched by including the said tuition in its budget and then not utilizing those funds for the intended purpose.
The plaintiffs further contend that they submitted a waiver form for the 2002-2003 school year, albeit untimely, and that the Sterling board "has refused to act on the waiver agreement submitted by the Plaintiffs." Despite the board's inaction, the plaintiffs elected to send Jordan to Griswold High School for the 2002-2003 school year and again paid the tuition with their own funds. With respect to the 2003-2004 school year, the plaintiffs timely submitted a 6150(a) waiver form but it was denied by the Sterling Board of Education at its April 2002 meeting.
Specifically, the fifth and sixth counts assert the following. In the fifth count, "the Plaintiffs claim an order that the Defendant Spurling issue letters to Jordan Wilcox authorizing his attendance at Griswold High School." Similarly, in the sixth count of the plaintiffs' revised complaint the plaintiffs seek 1) "an order directing the Sterling Board of Education to act on and approve the waivers submitted by the Plaintiffs" and 2) "an order directing the Town of Sterling and the Sterling Board of Education to pay Jordan Wilcox's tuition to attend Griswold High School . . ."
Paragraph 2 of the revised demand for relief seeks an identical remedy: "an order that the Defendant Spurling issue a letter to Jordan Wilcox authorizing his attendance at Griswold High School."
Paragraphs 3 and 4 of the revised demand for relief duplicate what the plaintiffs seek as a remedy in the sixth count.
II THE LAW A. Motion to Strike CT Page 12518
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Additionally, "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).B. Injunction
In this suit the plaintiffs seek "the extraordinary remedy of an injunction." (Internal quotation marks omitted.) Waterbury Teachers Assn. v. Civil Service Commission, 178 Conn. 573, 577, 424 A.2d 271 (1979). "Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances." (Internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476,480, 447 A.2d 1 (1982). "In exercising this discretion, the court must balance the competing interests of the parties . . . and [t]he relief granted must be compatible with the equities of the case." (Citation omitted; internal quotation marks omitted.) Hart, Nininger Campbell Associates v. Rogers, 16 Conn. App. 619, 632, 548 A.2d 758 (1988).
"A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). "These elements are so crucial that a party's failure to allege and prove them is sufficient ground for sustaining the refusal to grant an injunction, even where a court's conclusions on the merits are erroneous." Hartford v. American Arbitration Assn., 174 Conn. 472, 476-77, 391 A.2d 137 (1978).
There are, however, instances where the court will grant an injunction even though there are neither allegations nor proof of an irreparable harm and the lack of an adequate remedy at law. Relevant to the present case is the situation where an injunction is granted in order to prevent a multiplicity of actions. The Supreme Court has said that "[r]esort to equity is appropriate both to avoid multiplicity of actions at law . . . and to provide effective, convenient, direct, and complete relief." (Citations omitted.) Monroe v. Middlebury Conservation Commission, supra, 187 Conn. 482. The courts have, however, only recognized the application of this rule in limited circumstances. For example, this rule has been employed in nuisance claims; Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 649, 646 K2d 133 (1994); Berin v. Olson, 183 Conn. 337, 342-43, 439 A.2d 357 (1981); claims imposing a covenant not to compete or a restrictive covenant; Century 21 Access America v. Lisboa, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 03 081901, 35 Conn. L. Rptr. 272 (July 22, 2003, Ronan, J.); and where there is a claimed violation of a statute or state regulation; Conservation Commission v. Price, 193 Conn. 414, 429, 479 N2d 187 (1984).
"The court notes that there is a split of authority on the issue of a municipality's burden concerning an application for a temporary injunction . . . This court agrees with the line of cases that require a municipality to maintain the burden of proving irreparable harm and lack of an adequate remedy at law in an application for a temporary injunction." Canterbury v. Kukevitch, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0070337, 35 Conn. L. Rptr. 14 (June 17, 2003, Foley, J.).
At this point it is convenient to address the plaintiffs' argument that they "need not show irreparable harm and a lack of an adequate remedy at law if injunctive relief is sought to prevent a multiplicity of actions." The plaintiffs' argument is without merit. Both parties have characterized the plaintiffs' claims as claims for breach of contract. As discussed, the Supreme Court has held that an injunction may be imposed to avoid a multiplicity of actions. Application of this rule is limited however, and a breach of contract claim does not fall within the limited applications discussed above. The plaintiffs must satisfy the burden of sufficiently alleging both an irreparable harm and the lack of an adequate remedy at law.
1. Irreparable Harm
In order to determine whether the plaintiffs have sufficiently alleged an irreparable harm, the court turns to the following standard: "[w]hether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered." (Internal quotation marks omitted.) Patry v. Board of Trustees, 190 Conn. 460, 472, 461 A.2d 443 (1983). "[The Connecticut Supreme Court] ha[s] long recognized that no court of equity should ever grant an injunction merely because of the fears or apprehensions of the party applying for it, for those fears may exist without any substantial reason." Moore v. Serafin, 163 Conn. 1, 11, 301 A.2d 238 (1972). "The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83, 87-88, 788 A.2d 40 (2002).
2. No Adequate Remedy at Law
Assuming the plaintiffs have sufficiently alleged an irreparable harm they must then satisfy the burden of sufficiently alleging that there is no adequate remedy at law. This determination is set against the understanding that "[a] remedy at law, to exclude equity jurisdiction, must be as complete and beneficial as the relief in equity." (Internal quotation marks omitted.) Berin v. Olson, supra, 183 Conn. 342. "[A] remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Berger v. Cuomo, 230 Conn. 1, 6, 644 A.2d 333 (1994). Therefore, if there is an adequate remedy at law an injunction should not issue and the motion to strike should be granted. Totino v. Zoning Board of Appeals, 41 Conn. Sup. 398, 401, 578 N2d 681, 2 Conn. L. Rptr. 78 (1990).
Adequate remedy at law has also been described in the following manner: "Adequate remedy at law means a remedy vested in the complainant, to which he may at all times resort, at his own option, fully and freely, without let or hindrance." (Internal quotation marks omitted.) State ex. rel. Heimov v. Thomson, 131 Conn. 8, 13, 37 A.2d 689 (1944).
III. DISCUSSION
Each count of the pleading must state sufficient facts to set forth a legal cause of action. When a count includes a demand for relief that count must establish facts that will satisfy that specified demand for relief. Essentially, the plaintiffs seek a mandatory injunction in the fifth and sixth counts and in the corresponding demand for relief. In order for either of these counts to survive the defendants' motion to strike, the plaintiffs must have sufficiently stated facts within the respective count that allege an irreparable harm and the lack of an adequate remedy at law. Furthermore, if the motion to strike is granted for either count then the motion to strike the accompanying demand for relief will also be granted.
The plaintiffs have not meet their burden of sufficiently alleging an irreparable harm and the lack of an adequate remedy at law in order to survive the motion to strike for failure to state a claim upon which injunctive relief can be granted. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). Applying this standard to the revised complaint, it can be inferred that the fifth and sixth counts incorporate paragraphs that amply allege an irreparable harm. The plaintiffs, however, do not sufficiently allege, nor can it be inferred from either count, that they lack an adequate remedy at law. The plaintiffs fail to allege that legal relief will not "be as complete and beneficial as the relief in equity." Berin v. Olson, supra, 183 Conn. 342. There is no allegation that legal relief will not make the plaintiffs as whole as will the requested mandatory injunctions. If the plaintiffs prevail and are reimbursed for tuition, then they clearly have an adequate remedy at law and will again be whole. Moreover, granting the plaintiffs requested injunctive relief will result in their obtaining the identical legal remedy that they seek, that is, the recovery of the amount owed them for tuition reimbursement. As for prospective tuition payments, the plaintiffs have an adequate remedy at law similar to the one in the present case. Even if the plaintiffs do not have such a remedy, they have failed to sufficiently allege that they do not.
IV. CONCLUSION
Based on the foregoing, the motion to strike the fifth and sixth counts and paragraphs 2, 3 and 4 of the revised demand for relief is granted.