Kent Literary Club of Wesleyan University v. Wesleyan University ( 2021 )

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KENT LITERARY CLUB OF WESLEYAN UNIVERSITY v. WESLEYAN
UNIVERSITY—CONCURRENCE
D’AURIA, J., concurring. I agree with the majority’s
opinion in full. I write separately only to highlight cer-
tain concerns I have that might arise on remand if the
plaintiffs, the Kent Literary Club of Wesleyan University
at Middletown (Kent), the Gamma Phi Chapter of Delta
Kappa Epsilon at Wesleyan (DKE) and Jordan Jancze,
succeed on their claims under the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., and once again seek equitable relief.
The plaintiffs brought this action alleging promissory
estoppel, negligent misrepresentation, tortious interfer-
ence with business expectancies, and violations of
CUTPA. Their prayer for relief sought compensatory
damages, punitive damages, attorney’s fees and costs,
and specific performance. As to the CUTPA claims, the
plaintiffs alleged that the named defendant, Wesleyan
University (Wesleyan), engaged in trade or commerce
in two ways. First, they claim that, ‘‘by virtue of its
advertising of, and its offering for rent or lease, various
properties to students as residential housing, which it
markets as an integral part of their educational experi-
ence,’’ Wesleyan engaged in trade or commerce. In this
paradigm, the student plaintiff, Jancze (this is not a
class action), is a consumer of residential housing, and
Kent is Wesleyan’s ‘‘competitor.’’ The plaintiffs also
claim that Wesleyan used DKE and promised housing
there to students (including athletes) as a way of entic-
ing them to choose to attend Wesleyan but always
intended to pull the rug out from under them by denying
students DKE housing and requiring students to ‘‘reside
in more expensive housing’’ offered by Wesleyan.
Prior to trial, Wesleyan and the other defendants,
Wesleyan’s president, Michael S. Roth, and its vice pres-
ident for student affairs, Michael J. Whaley, moved to
strike both of the plaintiffs’ CUTPA claims and their
prayer for relief for specific performance. As to the
CUTPA claims, the defendants argued that the plaintiffs
failed to allege sufficient facts to establish that the
alleged misrepresentations violated CUTPA because
the plaintiffs did not allege that the defendants made
the misrepresentations with the intent to deceive. The
trial court agreed with the defendants and struck the
CUTPA claims. The plaintiffs repleaded the CUTPA
claims to correct this defect and to include the intent
element. The defendants did not file any subsequent
motion to strike the repleaded CUTPA claims.
As to the prayer for relief, the defendants argued that
none of the alleged causes of action permitted the court
to order specific performance requiring Wesleyan to
include the DKE House as an option in its offering of
program housing. The trial court, however, agreed with
the plaintiffs that their claims for promissory estoppel
supported a prayer for relief of specific performance.
Specifically, despite a lack of any controlling case law
from this court or the Appellate Court on the issue,
the trial court explained that, under breach of contract
principles, the plaintiffs may be entitled to specific per-
formance if monetary damages proved inadequate or
impracticable, and that this principle applies equally to
claims of promissory estoppel.
Following a trial, the jury returned a verdict in favor
of the plaintiffs on all counts and awarded Kent $386,000
in damages. In addition, the trial court, acting under
CUTPA, awarded the plaintiffs $398,129 in attorney’s
fees and $13,234.44 in costs. The plaintiffs then filed a
motion in the trial court seeking equitable relief in the
form of specific performance solely on the basis of their
claim of promissory estoppel. Specifically, they sought
an award requiring Wesleyan to include the DKE House
as a program housing option and allowing DKE brothers
full access to reside and to engage in social activities
at the house ‘‘as they had prior to [Wesleyan’s] ‘coeduca-
tion’ policy . . . .’’ In neither their prayer for relief nor
in their motion for an award of specific performance
did the plaintiffs request injunctive relief under CUTPA.
The trial court determined that this failure by the plain-
tiffs did not prevent it from awarding injunctive relief
under both CUTPA and the promissory estoppel claims,
as the defendants were aware from the beginning of
the case that the plaintiffs were seeking specific perfor-
mance and alleging CUTPA violations.
The trial court issued a mandatory injunction, requir-
ing, among other things, that Wesleyan enter into a new
contract with Kent and DKE, resume housing Wesleyan
students in the DKE House, and give DKE three years
in which to coeducate.1 The trial court determined that
injunctive relief was necessary for the plaintiffs to
obtain the full measure of justice under both their
CUTPA claims and their promissory estoppel claims
because, among other things, DKE and Kent had partici-
pated in Wesleyan’s program housing system for many
years, other residential Greek organizations had been
given three years in which to implement a viable coedu-
cational scheme, and Wesleyan had committed to pro-
viding DKE the same opportunity as those other
organizations to adapt to the new policy. The court also
alluded to the fact that the jury had found that Wesleyan
acted arbitrarily, capriciously, or in bad faith. Yet, the
trial court declined to award punitive damages, which,
under CUTPA, are for the court to award in its discre-
tion. See General Statutes § 42-110g (a) (‘‘[t]he court
may, in its discretion, award punitive damages’’
(emphasis added)).
This court’s ultimate conclusion in the present case
that a new trial is warranted on all claims, including
CUTPA, means it is entirely possible that the question
of a mandatory injunction might not reoccur on remand.
The parties might litigate the case very differently on
remand, or it is possible the plaintiffs will not prevail
on their CUTPA counts, obviating the need for the trial
court or an appellate court to consider such an injunc-
tion. Because I consider central to this appeal the scope
of the injunction that the trial court entered after trial,
I believe it warrants comment in this unique case, lest
the trial court on remand construe our not reaching the
question of its propriety as suggesting tacit approval.
I find the injunction that the trial court entered prob-
lematic for multiple reasons. First, as the trial court
noted, neither this court nor the Appellate Court ever
has determined whether the remedy of specific perfor-
mance is available in a promissory estoppel case in
which there are no allegations of an underlying con-
tract. I do not address this issue, however, because,
even if specific performance is a permissible remedy
under promissory estoppel, the injunction at issue went
well beyond ordering specific performance. Specific
performance ‘‘requires precise fulfillment of a legal or
contractual obligation . . . .’’ Black’s Law Dictionary
(11th Ed. 2019) p. 1686 (specific performance is ‘‘[t]he
rendering, as nearly as practicable, of a promised per-
formance through a judgment or decree; specif[ically],
a court-ordered remedy that requires precise fulfillment
of a legal or contractual obligation when monetary dam-
ages are inappropriate or inadequate’’). Here, the trial
court did not merely order Wesleyan to fulfill the precise
terms of the alleged promises but went beyond those
terms and ordered it to enter into a three year contrac-
tual relationship with DKE. For this reason, I do not
believe the scope of the injunction was proper under
the promissory estoppel claim. My view is bolstered by
the plaintiffs’ counsel’s concession at oral argument
before this court that the better argument for the source
of authority for the injunction, if there is one, is under
CUTPA, not promissory estoppel.
My remaining concerns involve the issuance of the
injunction under CUTPA. Initially, I note that I am not
convinced that the plaintiffs’ request for specific perfor-
mance under the promissory estoppel claims placed
the defendants on notice that the plaintiffs were seeking
an injunction under CUTPA. The purpose of specific
performance differs greatly from the purpose of equita-
ble relief under CUTPA—the former, as discussed pre-
viously, requires the parties to fulfill their promised
obligations exactly as stated; the latter, as I will discuss
in more detail, seeks to remedy the allegedly unfair or
deceptive practice or method of competition.
But even if the defendants were on notice of the
plaintiffs’ request for equitable relief under CUTPA, and
assuming that there is a cognizable CUTPA claim to
begin with, I question the scope of the injunction in
this case—specifically, whether the injunction actually
serves to eliminate or to compensate for the allegedly
unfair or deceptive trade practices. Because the case
is remanded for a new trial, I do not need to address
in detail the propriety of the scope of the injunction at
issue under CUTPA. Nonetheless, in the event that the
plaintiffs succeed on their CUTPA claims, I wish to note
my significant concerns over the scope of this injunction.
I recognize that CUTPA affords plaintiffs broad reme-
dies beyond simple monetary damages, including attor-
ney’s fees, punitive damages, and injunctive and other
equitable relief. See, e.g., Marinos v. Poirot, 308 Conn.
706, 712–13, 66 A.3d 860 (2013). Further, this court has
yet to clarify to what extent the general rules governing
injunctions apply to injunctions issued under CUTPA,
but I have no reason to believe that these general princi-
ples do not apply in this context, with one exception I
will discuss. To be entitled to injunctive relief, ‘‘[a] party
seeking injunctive relief has the burden of alleging and
proving irreparable harm and lack of an adequate rem-
edy at law. . . . A prayer for injunctive relief is
addressed to the sound discretion of the court and the
court’s ruling can be reviewed only for the purpose
of determining whether the decision was based on an
erroneous statement of law or an abuse of discretion.
. . . [I]n exercising its discretion, the court . . . may
consider and balance the injury complained of with
that which will result from interference by injunction.’’
(Internal quotation marks omitted.) Wallingford v. Wer-
biski, 274 Conn. 483, 494, 877 A.2d 749 (2005). ‘‘[T]he
relief granted must be compatible with the equities of
the case.’’ (Internal quotation marks omitted.) Dukes
v. Durante, 192 Conn. 207, 225, 471 A.2d 1368 (1984).
‘‘[I]t may be inequitable to grant an injunction which
would cause damage to the defendant greatly dispropor-
tionate to the injury of which the plaintiff complains
[especially if] . . . the judgment went beyond the relief
to which the plaintiff was entitled under the statutes.’’
(Citations omitted.) DeCecco v. Beach, 174 Conn. 29,
35, 381 A.2d 543 (1977); see Lydall, Inc. v. Ruschmeyer,
282 Conn. 209, 240–41, 919 A.2d 421 (2007) (holding
that injunction is overly broad under Connecticut Unfair
Trade Secrets Act, General Statutes § 35-50 et seq., if
it protects information that is not trade secret).
Unlike other statutes, the CUTPA statutes do not
provide that ‘‘[i]n such actions the court shall follow the
rules and principles governing the granting of injunctive
relief.’’ General Statutes § 35-34; cf. General Statutes
§ 42-110g (d). See generally R. Langer et al., 12 Connecti-
cut Practice Series: Connecticut Unfair Trade Practices,
Business Torts and Antitrust (2020–2021 Ed.) § 6.9.
Moreover, this court specifically has explained that, to
be entitled to injunctive relief under CUTPA, a plaintiff
need not establish that no adequate alternative remedy
exists and that the injury is irreparable. See Fairchild
Heights Residents Assn., Inc. v. Fairchild Heights, Inc.,
310 Conn. 797, 805 n.6, 82 A.3d 602 (2014). Like injunc-
tive relief in general, however, injunctive relief under
CUTPA is entrusted to the trial court’s discretion. See
General Statutes § 42-110g (d) (‘‘the court may, in its
discretion, order, in addition to damages or in lieu of
damages, injunctive or other equitable relief’’ (emphasis
added)). ‘‘[D]iscretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to [serve] and not to impede or defeat the
ends of substantial justice.’’ (Internal quotation marks
omitted.) Hurley v. Heart Physicians, P.C., 298 Conn.
371, 392, 3 A.3d 892 (2010). Thus, although the general
requirements of irreparable harm and lack of an ade-
quate remedy at law need not be satisfied to entitle a
plaintiff to injunctive relief under CUTPA, I believe that
the general rule that, in ordering injunctive relief, the
trial court must consider and balance the equities of
the case so that the injunction is not disproportionate
to the injury at issue still applies. Even under CUTPA,
the injunctive relief must be tailored to the alleged harm
and not go beyond the relief to which the plaintiff is
entitled under the statute.
Two trial level cases support my conclusion. In Bris-
tol Technology, Inc. v. Microsoft Corp., 114 F. Supp. 2d
59, 95–96 (D. Conn. 2000), vacated on other grounds,
250 F.3d 152 (2d Cir. 2001), the defendant challenged
both the plaintiff’s entitlement to injunctive relief under
CUTPA, arguing that the plaintiff had failed to establish
irreparable harm, as well as the scope of the injunction.
Judge Janet C. Hall of the United States District Court
for the District of Connecticut, applying state law, held
that the plaintiff did not have to establish irreparable
harm to be granted injunctive relief. Id. Nevertheless,
the court noted that the scope of the injunctive relief
had to be ‘‘no broader than necessary to cure the effects
of the harm caused by the violation . . . . Injunctive
relief should be narrowly tailored to address specific
harms and not impose unnecessary burdens on lawful
activity. . . . [The] court must exercise its discretion
in framing an injunction that is reasonably designed to
prevent wrongful conduct. . . . The court should grant
injunctive relief only in conformity with the spirit of
the law, and in a manner to [serve] and not to impede
or defeat the ends of substantial justice.’’ (Citations
omitted; internal quotation marks omitted.) Id., 97.
Because the plaintiff was seeking injunctive relief under
CUTPA for allegedly deceptive trade practices, the
court concluded that ‘‘[t]he injunctive relief in this case
should be designed to eliminate [that] deception.’’ Id.,
98.
More recently, then Judge Bright similarly explained
that, even if a plaintiff is entitled to injunctive relief
under CUTPA, ‘‘the injunction must be narrowly tai-
lored to address only the conduct that violates the stat-
ute.’’ State v. Tracey’s Smoke Shop & Tobacco, LLC,
Superior Court, judicial district of Hartford, Docket
Nos. CV-11-6024334S and CV-11-6024337S (February 24,
2012) (Bright, J.) (53 Conn. L. Rptr. 594, 601). According
to Judge Bright, although the trial court has discretion
to determine the scope of the injunction, ‘‘[s]uch relief
should be narrowly drawn to the circumstances of the
case.’’ Id., 600. Judge Bright applied these principles in a
sovereign enforcement action in which the state alleged
that the defendant, a tobacco shop, became a cigarette
manufacturer when its employees assisted customers
in the operation of the filling stations that allowed cus-
tomers to roll their own cigarettes, thus violating Gen-
eral Statutes § 4-28m (b) (2), which constituted a
CUTPA violation under § 4-28m (d). Id., 599–600. Judge
Bright disagreed with the state that the plaintiff should
be enjoined from using the filling stations under any
and all circumstances; rather, Judge Bright ruled that,
under CUTPA, the state was entitled to a more narrow
injunction enjoining the plaintiff from conduct only to
the extent that it was acting as a tobacco product manu-
facturer. Id., 600.
I agree with the admonitions of the courts in both
Bristol Technology, Inc., and Tracey’s Smoke Shop &
Tobacco, LLC, that an injunction issued under CUTPA
must be properly tailored to vindicate the alleged
CUTPA violation. In the present case, on remand, to
the extent that the plaintiffs establish their CUTPA
claims, the trial court, in exercising its discretion to
grant injunctive relief under CUTPA, must consider and
balance the equities of the case so that the injunction
(1) is not disproportionate to the injury at issue, and
(2) does not go beyond the relief to which the plaintiffs
are entitled under CUTPA. In considering these factors,
I emphasize that the purpose of CUTPA as a whole ‘‘is
aimed at eliminating or discouraging unfair methods of
competition and unfair or deceptive acts or practices.’’
(Internal quotation marks omitted.) Hinchliffe v. Amer-
ican Motors Corp., 184 Conn. 607, 616–17, 440 A.2d 810(1981). This does not give the trial court carte blanche
to fashion any injunctive relief it might wish to fashion,
even on the basis of a jury finding of arbitrary, capri-
cious, or bad faith conduct. Although such conduct
might justify punitive damages, which are available
under CUTPA but which the trial court chose to deny
in the present case, it does not allow the trial court to
craft equitable relief that exceeds the scope of the
alleged CUTPA violation.
I have difficultly seeing how the injunction the trial
court entered after trial vindicates the alleged CUTPA
violations. For example, in counts one and two of the
operative complaint, the plaintiffs alleged that the
defendants violated CUTPA as to DKE members and
the individually named student plaintiff, Jancze, on the
ground that Wesleyan marketed its residential housing
by emphasizing its ‘‘ ‘diversity of housing options,’ ’’
including the opportunity for upperclassmen to select
the DKE House, and used this marketing to recruit
athletes but intentionally failed to disclose that Wes-
leyan had the unilateral ability to eliminate the DKE
House as a housing option, and, intending not to deliver
on those representations, thereby deceived consum-
ers—the prospective students. The deceptive practice
at issue is that of deceiving prospective students about
the possibility of the DKE House being available as a
housing option. The injunction does not address this
allegedly deceptive practice. It does not require the
defendants to disclose Wesleyan’s unilateral ability to
control its residential housing options. Rather, it
requires that the DKE House be a housing option. Not
only does this not eliminate the deceptive practice, but
it does not remedy the alleged injustice. Because Jancze
likely is no longer a Wesleyan student, given the time
that has passed since trial, the injunction mandating
that Wesleyan and Kent enter into a three year contract
does not provide him any remedy. The same goes for
other DKE members who might claim to have been
deceived by the defendants, as the DKE House has not
been an option since the 2015–16 academic year.
Additionally, in counts seven through nine, the plain-
tiffs alleged that the defendants violated CUTPA as to
Kent on the ground that Wesleyan engaged in trade or
commerce by advertising and leasing residential hous-
ing to students; that Wesleyan was a competitor of
Kent in the market for student housing; and that the
defendants engaged in unfair methods of competition
by intentionally misrepresenting the criteria that Kent
would have to satisfy for the DKE House to remain a
housing option. Similarly, in counts ten and eleven, the
plaintiffs alleged that the defendants violated CUTPA
as to DKE on the ground that Wesleyan engaged in
trade or commerce by advertising and leasing residen-
tial housing to students, including members of DKE,
and that the defendants engaged in unfair or deceptive
practices by intentionally misrepresenting the criteria
that the members of DKE would have to satisfy for the
DKE House to remain a housing option.
The injunction the court entered, however, does not
actually seek to police the student housing market or
to promote competition in that market. It does not seek
to eliminate the allegedly unfair practices and methods
of competition—i.e., the alleged marketing misrepre-
sentation. Rather, it forces the parties into a continued
contractual relationship. Although this may seem at first
glance to be an equitable remedy, attempting to put the
plaintiffs in the position they would have been in but
for the misrepresentations, in my view, it is a dispropor-
tionate remedy. Prior to the injunction, Wesleyan was
not required to permit students to live off campus and,
under the Greek Organization Standards Agreement,
could terminate the agreement for any reason. But the
injunction forces Wesleyan not only to allow off-campus
housing but to enter into a contract with Kent and DKE
requiring the DKE House to be a housing option.2
As the court is remanding this case for a new trial
regardless of the propriety of the scope of the injunc-
tion, I recognize that we need not decide whether the
injunction was properly tailored to vindicate the alleged
CUTPA violations. Rather, I merely raise this issue in
this unique trade practices action to emphasize that, in
the event that the plaintiffs succeed on their CUTPA
claims and request equitable relief, the trial court should
look closely at the remedies afforded by the legislature
under CUTPA and choose those that vindicate that act
and not some other causes of action. I respectfully
concur.
1
With respect to the injunction, the court issued the following order:
‘‘Kent . . . and DKE are ordered to submit and reaffirm in current form
the plan for coeducation of 276 High Street [the location of the DKE House]
on or before January 15, 2018. . . . Wesleyan . . . is ordered to include
the DKE House . . . as an option in its offering of program housing for the
. . . 2018 [fall] semester. Kent . . . and DKE, as organizations, and [Wes-
leyan], are ordered to enter into a Greek [Organization] Standards Agree-
ment, which agreement is necessary to allow Kent . . . and DKE to house
Wesleyan students for the 2018 fall semester. Under this order, DKE is not
authorized to occupy or utilize the premises at 276 High Street until the
start of the 2018 fall semester. Except as provided herein, the agreement
is to be the same Greek [Organization] Standards Agreement that Wesleyan
enters into with other residential Greek organizations. The Greek [Organiza-
tion] Standards Agreement to be executed by the parties should contain
the same nondiscrimination clause that was previously agreed to by the
parties. . . . The court retains jurisdiction to ensure compliance with this
order. This order is without prejudice to Wesleyan . . . to enforce its rights
under the agreement, subject to its obligations under the agreement.’’ (Cita-
tion omitted.)
The trial court provided the following additional ‘‘guidance’’ in the event
that further proceedings might become necessary to enforce the order: ‘‘The
purpose of this order is to place the plaintiffs and [Wesleyan] in the same
position they would have been in had Wesleyan accepted the plaintiffs’ plan
for coeducation . . . when it was submitted to [Wesleyan] in 2015. The
three year period for full coeducation of [the] DKE House should begin with
the . . . 2018 [fall] semester. It is expected that the plaintiffs will diligently
fulfill the obligations they have committed to under their coeducation plan.
It is also expected that, as to the plaintiffs, Wesleyan will apply the same
standards for compliance with the plan of coeducation of residential Greek
organizations that it has applied to other similar organizations.
***
‘‘The order issued herein is not intended to overturn, modify, or thwart
Wesleyan’s plan of coeducation of residential Greek organizations. To the
contrary, in fashioning this relief, the court has sought to provide an instru-
mentality to bring about compliance with the coeducation plan by all
parties.’’
2
I note that there is at least some ambiguity in the trial court’s posttrial
injunction and guidance regarding the required duration of the imposed
contractual relationship. Although the trial court’s posttrial injunction states
that the parties are to enter into ‘‘the same Greek [Organization] Standards
Agreement that Wesleyan enters into with other residential Greek organiza-
tions,’’ implying that the thirty day termination provision still applies, the
trial court did not clarify how this provision would interact with its order
that the DKE House has three years to coeducate. If the DKE House has
three years to coeducate, it is unclear whether Wesleyan could terminate
their court-mandated contractual relationship before the end of three years
for bad faith conduct during the coeducation process, for conduct unrelated
to the coeducation process, or for any reason at all, as it could under the
previous consensual contract.