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

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KENT LITERARY CLUB OF WESLEYAN UNIVERSITY
AT MIDDLETOWN ET AL. v. WESLEYAN
UNIVERSITY ET AL.
(SC 20226)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiffs, K Co., the owner of a certain fraternity house on the campus
of Wesleyan University, the local chapter of the fraternity, and a member
of the fraternity, sought, inter alia, injunctive relief and damages from
the defendants, the university, its president, and its vice president for
student affairs, in connection with the university’s decision to preclude
the fraternity from allowing its members to reside in the fraternity house.
Following the university’s announcement in 2014 that all residential
fraternities on campus would be required to coeducate, and following
a series of unsuccessful negotiations between the parties to establish
a mutually agreeable coeducation plan, the university notified the plain-
tiffs that fraternity members could no longer reside in or use the frater-
nity house as of the 2015–2016 academic year. A Greek Organization
Standards Agreement (agreement) between K Co. and the fraternity, on
the one hand, and the university, on the other, which was a prerequisite
to allowing the use of the fraternity house for residential purposes,
permitted any party to terminate the relationship for any reason upon
thirty days’ notice and required the fraternity to comply with and be
bound by all university rules and policies, which the university could
amend or modify at any time. In their action against the defendants,
the plaintiffs alleged promissory estoppel, negligent misrepresentation,
tortious interference with business expectancies, and violations of the
Connecticut Unfair Trade Practices Act (CUTPA). Following a trial, the
jury awarded K Co. damages. In addition, the trial court issued an
injunction requiring that the university enter into a new agreement with
K Co. and the fraternity, allow the housing of fraternity members in
the fraternity house, and afford the fraternity three years in which to
coeducate. Moreover, the trial court, pursuant to CUTPA, awarded the
plaintiffs attorney’s fees and costs. The defendants appealed, raising
various challenges to the trial court’s jury instructions, the sufficiency
of the evidence with respect to both liability and damages, and the
award of injunctive relief. Held:
1. The trial court improperly declined to instruct the jury, in accordance
with the defendants’ request, that a party cannot prevail on a claim of
promissory estoppel based on alleged promises that contradict the terms
of a written contract, as the relationship between the parties was gov-
erned by a written agreement that allowed the university to terminate
its arrangement with the plaintiffs without cause upon thirty days’ notice
and the plaintiffs’ claims revolved around the contention that the univer-
sity wrongfully terminated its housing arrangement with them; neverthe-
less, the trial court was not required to instruct the jury, in accordance
with the defendants’ request, that the principle of promissory estoppel
applies only when there is no enforceable contract between the parties,
as the existence of a contract does not create an absolute bar to a
promissory estoppel claim when that claim addresses aspects of the
parties’ relationship that are collateral to the subject matter, and does
not vary or contradict the terms, of the written agreement, and, because
the plaintiffs arguably claimed that the university promised the fraternity
that, if it took good faith steps to develop a viable coeducation plan, it
could then allow members to reside in the fraternity house, the trial
court should have instructed the jury that the plaintiffs’ promissory
estoppel claim is cognizable but only insofar as the plaintiffs alleged
that the university made promises or commitments that did not alter
or contradict the terms of the agreement.
2. The trial court should have instructed the jury as to the legal implications
of the parties’ agreement in connection with the plaintiffs’ CUTPA claim,
and its failure to do so entitled the defendants to a new trial on that claim.
3. The plaintiffs, having expressly eschewed any claim that the university
modified the parties’ agreement, waived any rights thereunder, or
breached a provision of that agreement that requires consistent treat-
ment of all residential fraternities on the university’s campus, had no
legal grounds for contesting the university’s unilateral decision not to
continue to allow the fraternity to house its members during the 2015–
2016 academic year, and, accordingly, the trial court improperly failed
to instruct the jury that, in light of the parties’ agreement, the plaintiffs
could not, as a matter of law, reasonably have relied on any perceived
extracontractual promise or representation by the university that the
fraternity could continue to house its members during that academic
year and beyond.
4. This court having determined that any damages in connection with the
plaintiffs’ claim for tortious interference with business expectancies
should be assessed in terms of net profits, the trial court improperly
failed to instruct the jury that it should have subtracted K Co.’s expenses
of operating an occupied versus an unoccupied fraternity house from
its anticipated lost revenue in order to calculate lost profits; because
the most reasonable reading of the jury’s damages award was that the
award included K Co.’s total anticipated lost revenues for the 2015–2016
academic year, without regard to any savings from expenses it did not
incur, the trial court’s failure to properly instruct the jury as to the
correct method of calculating tortious interference damages resulted in
an improper award.
5. The trial court improperly failed to instruct the jury that the parties’
agreement limited the defendants’ potential exposure to only those
losses that K Co. incurred before the termination of the agreement for
the 2015–2016 academic year, as a defendant cannot be held liable for
tortious interference of business expectancies merely for exercising its
legitimate contractual rights, regardless of the motive therefor; more-
over, damages, if any were incurred, were available to compensate K
Co. for interference with its rights only under the parties’ agreement
covering the 2014–2015 academic year, as K Co. could not have had any
reasonable expectation that the university would continue to facilitate
its business with fraternity members after that academic year; accord-
ingly, the trial court’s failure to correctly instruct the jury as to the law
governing damages that may be recovered for tortious interference with
business expectancies required a retrial on that particular claim.
6. The defendants were entitled to a new trial on the plaintiffs’ claim of
negligent misrepresentation, as the trial court failed to instruct the jury
as to the proper measure of K Co.’s losses in connection with that claim;
although the plaintiffs testified that they had relied to their detriment
on the university’s alleged misrepresentations, the plaintiffs made no
attempt to quantify the costs associated with those representations, and,
in light of the evidence and arguments presented at trial, the jury’s
award was intended to compensate K Co. not for its reliance damages
but, instead, for its expectation or benefit of the bargain losses.
7. Because the parties’ agreement, which substantially limited the potential
scope of the university’s liability, did not immunize the university with
respect to the plaintiffs’ claim that the university had negotiated the
renewal of the parties’ agreement in bad faith, and because there was
sufficient evidence for the jury to have found that the university inten-
tionally misled the plaintiffs during the negotiations, leading them to
reasonably rely on its representations that the fraternity could continue
to house its members if it agreed to coeducate and simply submitted a
basic, preliminary plan to coeducate, when, in fact, the university was
secretly determined to terminate its relationship with K Co. in the hope
of being able to acquire the property on which the fraternity house was
situated, a reasonable jury could have found the defendants liable to
that limited extent.
8. The defendants could not prevail on their claim that, because the Federal
Trade Commission and the federal courts no longer apply the cigarette
rule as the test governing unfair trade practice claims under the Federal
Trade Commission Act, and because CUTPA directs the courts of this
state to be guided by interpretations given by the Federal Trade Commis-
sion and federal courts in construing the federal act, the trial court
improperly instructed the jury that it should find that the university
committed an unfair trade practice or practices if its conduct violated
the cigarette rule; this court concluded that, until such time as the
legislature chooses to enact a different standard, the cigarette rule
remains the operative standard for unfair trade practice claims under
CUTPA; moreover, the current federal standard is applied primarily in
the regulatory context, as there is no private right of action under the
federal act, unlike under CUTPA, and the current federal standard is
less readily administrable by a jury and, therefore, arguably ill-suited
for claims asserted under CUTPA.
9. The trial court abused its discretion in issuing an injunction requiring the
university to enter into the ‘‘same’’ agreement that it had with other
residential fraternities, to allow the housing of members in the fraternity
house, and to give the fraternity three years in which to coeducate: the
injunction was unenforceable, and, thus, was without legal effect, insofar
as the university could terminate the new agreement without cause after
giving thirty days’ notice, as it reserves the right to do so in the agree-
ments it had with other residential fraternities, and the right to house
members in the fraternity house would be extinguished as a result of
that termination; moreover, the residential fraternities and the university
historically had entered into one year agreements terminable at will by
either party, there was no claim that the university agreed to waive or
modify this provision of the standard agreement, and, therefore, if the
trial court intended to bind the university to a three year housing agree-
ment with the plaintiffs by extending the time to coeducate to three
years, that aspect of the injunction represented an expansion of the
terms of the same agreement the university had with other residential
fraternities and was improper.
(One justice concurring separately)
Argued May 1, 2019—officially released March 5, 2021**
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged violation of the Connecticut Unfair Trade
Practices Act, and for other relief, brought to the Supe-
rior Court in the judicial district of Middlesex and tried
to the jury before Domnarski, J.; verdict for the plain-
tiffs; thereafter, the court, Domnarski, J., denied the
defendants’ motions for a directed verdict and to set
aside the verdict, issued an injunction requiring the
defendants to enter into a certain agreement with the
plaintiffs, and rendered judgment for the plaintiffs, from
which defendants appealed. Reversed; new trial.
Aaron S. Bayer, with whom was Benjamin M. Dan-
iels, for the appellants (defendants).
Richard J. Buturla, with whom was Bryan L.
LeClerc, for the appellees (plaintiffs).
Opinion
PALMER, J. This appeal involves a commercial dis-
pute arising in the unique context of an undergraduate
housing program. The plaintiffs are Kent Literary Club
of Wesleyan University at Middletown (Kent), which
owns a Delta Kappa Epsilon fraternity house on the
Wesleyan University campus (DKE House); the Gamma
Phi Chapter of Delta Kappa Epsilon at Wesleyan (DKE);
and Jordan Jancze, who, at the time of trial, was a
Wesleyan student and DKE member.1 The defendants
include Wesleyan University (Wesleyan or the univer-
sity); Wesleyan’s president, Michael S. Roth; and Wes-
leyan’s vice president for student affairs, Michael J.
Whaley. Following Wesleyan’s September, 2014 announce-
ment that all residential fraternities on campus would
be required to coeducate, and following a series of
unsuccessful negotiations between the parties to estab-
lish a mutually agreeable coeducation plan, Wesleyan
notified Kent and DKE that they would no longer be
eligible to participate in the university’s program hous-
ing system as of the 2015–2016 academic year and,
therefore, that Wesleyan students no longer could
reside in or use the DKE House. In response, the plain-
tiffs commenced the present action, alleging promis-
sory estoppel, negligent misrepresentation, tortious
interference with business expectancies, and violations
of the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq., and seeking damages,
attorney’s fees and costs, and injunctive relief. Follow-
ing a jury trial, the jury returned a verdict for the plain-
tiffs on all counts and awarded Kent $386,000 in
damages. In addition, the trial court, acting pursuant
to CUTPA, awarded the plaintiffs $398,129 in attorney’s
fees and $13,234.44 in costs, and issued a mandatory
injunction requiring, 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.
On appeal, the defendants raise various challenges
to the judgment, including claims concerning the trial
court’s jury instructions and the sufficiency of the evi-
dence with respect to both liability and damages. The
defendants also contend that the trial court abused
its discretion or otherwise acted contrary to law in
awarding the plaintiffs injunctive relief. We conclude
that, although there was sufficient evidence for the jury
to find the defendants liable, the trial court failed to
properly instruct the jury regarding the legal effects of
the parties’ contract and the proper means of calculat-
ing damages.2 Accordingly, we reverse the judgment of
the trial court and remand the case for a new trial.
I
FACTS AND PROCEDURAL HISTORY
The relevant facts, which were developed at trial,
and procedural history may be briefly summarized as
follows. Wesleyan is a small, private, liberal arts univer-
sity located in the city of Middletown. With a few excep-
tions not relevant to the present action, Wesleyan
requires all undergraduate students to reside on cam-
pus, primarily in university owned housing.
The university considers residential life to be an
important component of the undergraduate education
experience. In lieu of residing in traditional dormitories,
students can opt to enter Wesleyan’s program housing
system and live in a theme house based on shared
hobbies, experiences, cultural interests, or identities.
Students who wish to live in residential fraternities—
there are no residential sororities at Wesleyan—must do
so via program housing. During the 2014–2015 academic
year, three all-male fraternities, one of which was DKE,
operated houses on campus and participated in Wes-
leyan program housing.
In order to participate in program housing, to have
Wesleyan students placed in their house, and to receive
those students’ housing dollars as rent, Kent and DKE,
like the other residential fraternities, were required to
enter into an annual Greek Organization Standards
Agreement with Wesleyan. Among other things, that
contract (1) allows either party to terminate the rela-
tionship for any reason upon thirty days’ notice, (2)
requires the fraternity to comply with and be bound by
all university rules and policies, which the university
is permitted to amend or modify at any time, (3) requires
the university to enforce and apply the provisions of
the agreement in a manner consistent with how it treats
other residential Greek organizations, and (4) provides
that the university’s failure to enforce any provision of
the agreement shall not be construed as a waiver with
respect to any subsequent breaches. In the present
action, the plaintiffs have never contended that Wes-
leyan breached or modified that agreement.
DKE is the local chapter of an international fraternal
organization, Delta Kappa Epsilon, whose charter bars
local chapters from admitting women as members. DKE
has existed as a Greek fraternal organization recognized
by Wesleyan since 1867. Kent is a Connecticut, nonstock
corporation that is operated by Wesleyan’s DKE alumni
and has owned the DKE House at 276 High Street, in
the center of the Wesleyan campus, since 1888.
In the spring of 2014, following a series of incidents
in which young women at Wesleyan claimed to have
been raped at other fraternity houses3 and Wesleyan
was named as a defendant in resulting lawsuits, it began
to participate in what had become a nationwide debate
regarding the role of fraternities on college campuses.
Specifically, the administration began to consider
whether all-male residential fraternities contribute to
sexual assault and harassment, and whether main-
taining such fraternities as program housing options
was consistent with the university’s prioritizing of gen-
der equity, inclusiveness, and the safety of its female
students. At the same time, according to Scott Karsten,
a DKE alumnus, the plaintiffs sought to take proactive
steps to be in the forefront of Wesleyan’s educational
effort to combat sexual assault and binge drinking, such
as enlisting a physician to give an educational program
for DKE members on bystander intervention.
After consulting with various stakeholders and con-
sidering various options, Roth announced, on Septem-
ber 22, 2014, that Wesleyan intended to require that
residential fraternities become fully coeducational over
the next three years. The announcement stated that
‘‘women as well as men must be full members and
[well represented] in the body and leadership of the
[residential fraternity] organization.’’ It further stated
that the university ‘‘looks forward to receiving plans
from the residential fraternities to [coeducate]’’ and
would ‘‘work closely with them to make the transition
as smooth as possible.’’
In the months that followed, the parties engaged in
a series of negotiations and communications aimed at
achieving a mutually agreeable plan for coeducating
the DKE House. The parties place very different spins
on the nature of those negotiations.
Wesleyan contends that it tried to meet the plaintiffs
half way, such as by agreeing to allow DKE to coeducate
at the residential level—bringing female residents into
the DKE House and giving them equal say in house
management and programming—but not at the organi-
zational/membership level, that is, not requiring DKE
to accept women as members of the fraternity itself.
In the university’s view, however, the plaintiffs failed
to negotiate in good faith and chose instead to stonewall
and delay the negotiations, ultimately via litigation, in
a calculated effort to outlast the administration and, in
particular, Roth’s tenure as president.
The plaintiffs, for their part, contend that it was Wes-
leyan that failed to negotiate in good faith. They argue
that Wesleyan recognized at the outset that it would
‘‘have to develop goals and benchmarks for ‘meaningful
coeducation’ ’’ but that the university never provided
any such goals or benchmarks to the plaintiffs to aid
them in drafting an acceptable coeducation plan. They
emphasize that they submitted a preliminary coeduca-
tion plan for the DKE House on January 5, 2015, that
complied with Wesleyan’s stated requirements and was
more detailed than the plan submitted by Psi Upsilon,
another residential fraternity that was permitted to
remain in program housing.4 They argue that Roth never
intended to allow them to coeducate solely at the resi-
dential level and that, in fact, his coeducation require-
ment was merely a pretext to sever ties with DKE and
to force Kent to sell the centrally located DKE House
to the university. Because the jury found for the plain-
tiffs on all counts, we must assume that the jury found
their account, or at least some substantial portion
thereof, to be more persuasive.
In any event, February 7, 2015, the date of Wesleyan’s
annual student housing selection, arrived without an
agreement between the parties. Accordingly, on Febru-
ary 13, 2015, Whaley wrote to inform the plaintiffs that
Wesleyan was terminating their Greek Organization
Standards Agreement, effective June 18 of that year.
Since that time, Wesleyan student members of DKE,
such as Jancze, have been denied the opportunity to
reside in the DKE House or even to use the house
for nonresidential purposes, such as for studying and
chapter meetings. This action effectively rendered the
property, which has sat empty, useless to the plaintiffs.5
The plaintiffs responded by filing the present action.
The operative third amended complaint alleges promis-
sory estoppel, negligent misrepresentation, tortious
interference with business expectancies, and various
CUTPA violations. These different causes of action
encompass several different, overlapping theories of
liability. The plaintiffs allege, for example, that Wes-
leyan (1) falsely reassured them that they would be
eligible to remain in program housing under the new
policy if they agreed to coeducate at the residential,
but not the organizational, level, on which promise they
relied to their detriment, such as by taking steps neces-
sary to prepare a residential coeducation plan, (2) failed
to honor its promise that DKE would be given three
years in which to coeducate if the fraternity satisfied
certain criteria, and (3) broke a promise to prospective
and incoming freshman students that they would have
the opportunity to reside in the DKE House.
The defendants moved for summary judgment,
arguing that all of the plaintiffs’ claims failed as a matter
of law because, among other things, the plain and unam-
biguous language of the parties’ Greek Organization
Standards Agreement permitted Wesleyan to terminate
its relationship with Kent and DKE for any reason at
the end of the 2014–2015 academic year.6 The trial court,
Aurigemma, J., denied the motion, concluding that
Wesleyan’s contractual right to terminate the Greek
Organization Standards Agreement did not preclude a
claim that Wesleyan misrepresented that the plaintiffs
could remain eligible to participate in program housing
if they agreed to coeducate solely at the residential
level.
The case proceeded to trial in June, 2017, by which
time the DKE House had been sitting empty for two
full academic years. The jury returned a verdict in favor
of the plaintiffs as to all four counts and awarded
unspecified damages to Kent in the amount of $386,000.
Subsequently, the trial court, Domnarski, J.,7 (1) denied
the defendants’ motions for a directed verdict, to set
aside the verdict, and for remittitur, (2) granted the
plaintiffs’ motion for attorney’s fees and costs, as
authorized under CUTPA, in the amount of approxi-
mately $411,000, (3) denied the plaintiffs’ motion for
punitive damages, and (4) granted the plaintiffs’ motion
for an award of specific performance, issuing a manda-
tory injunction ordering Wesleyan to enter into a new
Greek Organization Standards Agreement with Kent
and DKE, and to reinstate the DKE House as a program
housing option beginning in the 2018 fall semester. The
court rendered judgment in accordance with the jury
verdict and its posttrial orders under CUTPA.
The defendants appealed to the Appellate Court, and
we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-
1. On appeal, the defendants contend that (1) the trial
court’s jury instructions as to liability and damages were
legally incorrect, (2) there was insufficient evidence to
support the jury’s verdict as to each cause of action,
and (3) the trial court abused its discretion or commit-
ted legal error in issuing a mandatory injunction requir-
ing that Wesleyan readmit DKE into program housing.8
Additional facts will be set forth as necessary.
II
LEGAL OVERVIEW
Because there is a substantial degree of overlap
between the plaintiffs’ various legal theories, and also
among the defendants’ various challenges to the verdict,
our analysis of the issues presented by this appeal nec-
essarily involves some measure of redundancy. In the
interests of streamlining that analysis to the extent pos-
sible, we offer the following initial observations, apro-
pos of many, if not most, of the issues in this case.
Wesleyan is a private university. Unless otherwise
restricted by law, it is permitted to establish any student
housing system that it chooses and to require that Wes-
leyan students adhere to its housing rules as a condition
of matriculation. The flip side of that coin is that Kent, as
an outsider to Wesleyan’s relationship with its students,
has no right or enforceable expectation that any Wes-
leyan students will be permitted to live in the DKE
House or have their housing dollars flow to Kent, other
than as agreed to by the parties.
The plaintiffs make much of the fact that DKE has
been recognized as a fraternal organization at Wesleyan
for approximately 150 years and that Kent has owned
the DKE House for nearly that long. But that history
does not create an enforceable right for Kent to con-
tinue to conduct business with Wesleyan or to house
Wesleyan students in perpetuity, any more than any
other organization or business can insist on maintaining
relations with an unwilling, long-term commercial part-
ner after relations have soured and the governing con-
tract has expired.9 See, e.g., Guyer v. Cities Service Oil
Co., 440 F. Supp. 630, 633 (E.D. Wis. 1977); cf. United
States v. Colgate & Co., 250 U.S. 300, 307, 39 S. Ct. 465,
63 L. Ed. 992 (1919) (‘‘The trader or manufacturer . . .
carries on an entirely private business, and can sell to
whom he pleases. . . . A retail dealer has the unques-
tioned right to stop dealing with a wholesaler for rea-
sons sufficient to himself . . . .’’ (Citation omitted;
internal quotation marks omitted.)).
What this means is that, if the plaintiffs have any
enforceable rights, those rights are grounded, first and
foremost, in the parties’ contracts. Unfortunately for
the plaintiffs, the contracts to which they agreed afford
them little recourse in the event that Wesleyan decides
not to renew DKE’s eligibility for program housing. Both
Kent and DKE were signatories to the fraternity’s Greek
Organization Standards Agreement with Wesleyan, and
the university placed students in the DKE House pursu-
ant to the housing contract to which each Wesleyan
student accedes. By entering into that agreement, Kent
necessarily accepted that its ability to lease its property
to Wesleyan students under the auspices of the universi-
ty’s official program housing system could be curtailed
at Wesleyan’s sole discretion. Just as Kent may freely
decide each academic year whether it wishes to con-
tinue to rent to Wesleyan students, and DKE may elect
whether it wishes to participate as a program housing
option, Wesleyan is free to choose, with thirty days’
notice and for any reason not prohibited by law, not
to offer DKE as a program housing option and not to
permit its students to rent from an outside party such
as Kent. Many institutions of higher learning make pre-
cisely those choices each academic year.
Of course, the plaintiffs could have brought this case
in contract, alleging that Wesleyan breached, or seeking
enforcement of, the Greek Organization Standards
Agreement. But, importantly, they brought no such
claim. Indeed, the plaintiffs repeatedly and expressly
have eschewed any claims sounding in breach of con-
tract. For instance, they do not contend that Wesleyan’s
conduct had the legal effect of extending the agreement
from a one year term to a three year term, waiving
Wesleyan’s right to terminate the agreement without
cause upon thirty days’ notice, or otherwise modifying
the agreement.10
The plaintiffs’ legal theories and the decision of the
trial court, rather, are largely predicated on the con-
tention that Wesleyan’s allegedly deceptive and mis-
leading conduct was independently tortious. The
plaintiffs further contend that Wesleyan’s conduct gave
rise to a separate, supra-contractual, but enforceable,
obligation for Wesleyan to continue to conduct business
with Kent and to assign students to live in the DKE
House.
Undoubtedly, it is possible, under certain limited cir-
cumstances, to commit a tort or an unfair trade practice
in the context of exercising one’s legitimate contractual
rights. This may happen, for example, if one party nego-
tiates in bad faith so as to cause the other party reason-
ably to rely on a false belief that an annual contract
will be renewed or extended. To this limited degree,
the plaintiffs’ claims are cognizable.
Nevertheless, under such circumstances, a party gen-
erally cannot recover more in tort than it would have
been entitled to recover under the contract. In the pres-
ent case, the terms of the parties’ contract substantially
limit the scope of Wesleyan’s potential liability in tort,
as well as the availability of injunctive relief. Prior to
September 22, 2014, when Roth first announced Wesley-
an’s new coeducation policy, the plaintiffs could not,
as a matter of law, have held any reasonable expectation
that they would be able to insist on continuing to do
business with Wesleyan after the end of the 2014–2015
academic year upon the expiration of the Greek Organi-
zation Standards Agreement that was then in place
between the parties. Further, on February 13, 2015,
Wesleyan notified the plaintiffs that it was terminating
the parties’ contract, effective as of June 18, 2015, the
end of the 2014–2015 academic year. By implication,
this meant that Wesleyan would not be placing any
students in the DKE House during the 2015–2016 aca-
demic year. From that time forward, the plaintiffs also
could not, as a matter of law, have held any reasonable
expectation that they would be able to insist on continu-
ing to do business with Wesleyan, in light of the fact
that Kent and DKE’s right to house Wesleyan students
was grounded entirely in, and limited by, the terms of
the Greek Organization Standards Agreement, to which
they repeatedly had assented. Wesleyan’s potential lia-
bility, then, extends only so far as they made misrepre-
sentations regarding the renewal or extension of the
contract or otherwise bargained in bad faith between
September 22, 2014, and February 13, 2015 (the negotia-
tion period). Kent’s potential recovery is likewise lim-
ited to any documented costs it accrued during that
negotiation period in reliance on Wesleyan’s alleged
misrepresentations. To the extent that the jury was
not instructed accordingly and the damages awarded
exceeded those that were proven to occur during the
negotiation period in detrimental reliance on Wesley-
an’s alleged misrepresentations or bad faith conduct,
the judgment is not sustainable.
III
PROMISSORY ESTOPPEL AND
CUTPA INSTRUCTIONS
The defendants’ central argument throughout the
course of this litigation has been that the parties’ Greek
Organization Standards Agreement essentially immu-
nizes the university against the plaintiffs’ various legal
claims. Although a jury instruction on that subject might
well have been appropriate as to each of the plaintiffs’
four causes of action, the defendants asked the trial
court to instruct the jury that the parties’ contract
barred liability only with respect to the plaintiffs’ prom-
issory estoppel and CUTPA claims. Accordingly, we
will limit our consideration of the issue to those two
causes of action. We conclude that, although the jury
instructions that the defendants sought at trial over-
stated the extent to which the agreement shields Wes-
leyan from liability, the trial court should have
instructed the jury as to the legal import of the agree-
ment. Its failure to do so was reversible error.
A
Procedural History
The following additional procedural history is rele-
vant. Throughout the course of this litigation, the defen-
dants have argued that the agreement shields them from
any liability in connection with the plaintiffs’ various
claims. At the outset, the defendants pleaded seven
special defenses, the first of which was that the ‘‘[p]lain-
tiffs’ claims are barred by the terms of the Greek Organi-
zation Standards Agreement, pursuant to which
Wesleyan had the right to terminate the [a]greement
[upon] thirty [days’] written notice for any reason.’’
Subsequently, in their motion for summary judgment,
the defendants argued that all of the ‘‘[p]laintiffs’ claims
fail as matter of law because they are barred by the
plain and unambiguous language of the parties’
express contracts.’’
In their amended request to charge, the defendants
sought the following jury instructions consistent with
that position:
‘‘6. Connecticut Unfair Trade Practices Act—Conduct
Consistent with Contract Terms.
‘‘In determining whether there was an unfair act or
practice, you must take into account the parties’ written
contracts, including the housing contract and the Greek
Organization Standards Agreement . . . . When a
party acts consistently with its rights under a contract,
its conduct cannot violate CUTPA.
***
‘‘8. Promissory Estoppel—Effect of Written Contract.
‘‘The plaintiffs also allege claims based on the legal
principle known as promissory estoppel. The principle
of promissory estoppel applies only when there is no
enforceable contract between the parties. A party can-
not prevail on a claim for promissory estoppel based
on alleged promises that contradict the terms of a writ-
ten contract.
***
‘‘20. Effect of Parties’ Written Contracts.
‘‘As a special defense to the plaintiffs’ CUTPA claims,
the defendants contend that they acted consistently
with the terms of the parties’ two written contracts—
the housing contract and Greek Organization Standards
Agreement . . . . In particular, the defendants point
to the following:
***
‘‘[T]he [Greek Organization] Standards Agreement
allows the parties to terminate upon thirty [days’] prior
written notice to the other party for any reason. I will
instruct you that the ordinary meaning of the language
‘any reason’ is that the parties may terminate for cause;
for no cause; or for a reason that may be considered
morally indefensible.
‘‘It is not your function to remake the parties’ con-
tracts or to change the terms thereof. You must deter-
mine the intent of the parties from the contracts that
the parties themselves made and apply the terms of
those contracts according to their ordinary meaning. If
you find that the defendants acted consistently with
the ordinary terms of the parties’ contracts, then you
must return a verdict in favor of the defendants with
respect to the plaintiffs’ CUTPA claims.’’ (Citations
omitted.)
The trial court declined to give the requested instruc-
tions and, indeed, gave no instructions whatsoever as
to the defendants’ first affirmative defense or the legal
significance of the Greek Organization Standards Agree-
ment. The defendants took exception to the court’s
charge, consistent with their requested instructions.
B
Legal Standards
‘‘The standard of review for claims of instructional
impropriety is well established. [I]ndividual jury instruc-
tions should not be judged in artificial isolation [but
must be viewed in the context of the overall charge]
. . . . The pertinent test is whether the charge, read
in its entirety, fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error.’’ (Internal quotation
marks omitted.) Kos v. Lawrence + Memorial Hospital,
334 Conn. 823, 837–38, 225 A.3d 261 (2020). In other
words, we must ‘‘consider whether the instructions [in
totality] are sufficiently correct in law, adapted to the
issues and ample for the guidance of the jury.’’ (Internal
quotation marks omitted.) Potter v. Chicago Pneumatic
Tool Co., 241 Conn. 199, 239–40, 694 A.2d 1319 (1997).
‘‘A challenge to the validity of jury instructions presents
a question of law over which [we have] plenary review.’’
Pickering v. Rankin-Carle, 103 Conn. App. 11, 14, 926
A.2d 1065 (2007).
With respect to situations in which the challenged
instruction failed to address important legal principles
but the instruction that the appellant had requested also
was not a completely accurate statement of the relevant
law, we have offered the following guidance: ‘‘As a rule,
to entitle a party to a new trial for the refusal of the
court to charge as requested, the request should be so
framed that the court can properly comply with it. . . .
[However] there should be an exception when the
request relates to a material and important feature of
the case concerning which it is clearly the duty of the
court to instruct the jury irrespective of the request. If
in such cases the court not only refuses to instruct them
as requested, but entirely omits all reference to the
subject, thereby leaving the jury to have, and to act
[on], erroneous impressions of the law, we think the
party is entitled to a new trial, notwithstanding the
imperfect manner of making the request.’’ (Internal quo-
tation marks omitted.) Mei v. Alterman Transport
Lines, Inc., 159 Conn. 307, 311, 268 A.2d 639 (1970);
see also Mack v. Clinch, 166 Conn. 295, 297, 348 A.2d 669(1974) (‘‘[W]e [are not] limited to the specific question
of whether the defendant’s request to charge should
have been granted. Having been informed of a material
and important issue by the request, it was the duty of
the court to charge correctly on that subject.’’). As we
discuss more fully hereinafter, although the actual
instructions that the defendants sought in the present
case overstated the extent of their contractual protec-
tions, it is clear that the legal significance of the Greek
Organization Standards Agreement that governed the
parties’ relationship was of sufficient import to the
plaintiffs’ promissory estoppel and CUTPA causes of
action that the trial court was obliged to instruct the
jury thereon.
C
Instructions Relating to Promissory Estoppel Claim
With these principles in mind, we turn to the defen-
dants’ central claim, namely, that the jury should have
been instructed that the fact that Wesleyan was contrac-
tually permitted to terminate its relationship with DKE
and Kent for any reason upon thirty days’ notice means
that it could not be held liable under a theory of promis-
sory estoppel or under CUTPA for having exercised
that contractual right, regardless of the manner in which
it chose to do so. We begin with promissory estoppel.
To prevail in a cause of action sounding in promissory
estoppel, a plaintiff must convince the jury that (1)
the promisor has failed to honor a clear and definite
promise that (2) the promisor reasonably should expect
to induce detrimental action or forbearance on the part
of the promisee or a third person, and (3) the promise
does, in fact, induce detrimental action or forbearance
in reasonable reliance on the promise. See, e.g., D’Uli-
sse-Cupo v. Board of Directors of Notre Dame High
School, 202 Conn. 206, 213, 520 A.2d 217 (1987). The
trial court also must find, as a matter of law, that injus-
tice can be avoided only by enforcement of the promise.
See id.; 1 Restatement (Second), Contracts § 90 (1), p.
242 (1981); see also ‘‘From the Committee on Standard
Civil Jury Instructions,’’ 78 Mich. B.J. 352, 354 (1999)
(majority view is that whether injustice can be avoided
only by enforcement of promise is equitable question
that should be determined by trial court as matter of
law). The trial court’s charge to the jury in the present
case was accurate, as far as it went, insofar as it was
consistent with these principles.11
The extent to which liability under the doctrine of
promissory estoppel is precluded by the existence of
a contract between the parties also is well established.
As a general matter, ‘‘[w]hen an enforceable contract
exists . . . parties cannot assert a claim for promis-
sory estoppel [on the basis of] alleged promises that
contradict the written contract. . . . Put differently, a
plaintiff cannot use the theor[y] of promissory estoppel
. . . to add terms to [a] contract that are entirely incon-
sistent with those expressly stated in it.’’ (Citation omit-
ted; internal quotation marks omitted.) Marino v.
Guilford Specialty Group, Inc., Docket No. 3:14CV705
(AVC), 2015 WL 1442749, *8 (D. Conn. March 27, 2015);
see also In re Pilgrim’s Pride Corp., 706 F.3d 636, 641
(5th Cir. 2013) (it is unreasonable to rely on alleged
promise that purports to extend duration of written
contract); Kuwaiti Danish Computer Co. v. Digital
Equipment Corp., 438 Mass. 459, 468, 781 N.E.2d 787(2003) (concluding that ‘‘[r]eliance on any statement or
conduct . . . was unreasonable as a matter of law
[insofar as] it conflicted with the qualifying language
[in a written document]’’).
Consistent with these principles, the defendants
asked the trial court to charge the jury that ‘‘[a] party
cannot prevail on a claim for promissory estoppel based
on alleged promises that contradict the terms of a writ-
ten contract.’’ Because the relationship between the
parties was governed by a written contract that allowed
the university to terminate its arrangement with the
plaintiffs without cause upon thirty days’ notice and
the plaintiffs’ claims revolved around the contention
that Wesleyan wrongly terminated its housing arrange-
ment with them, the defendants were entitled to such
an instruction.
We are not persuaded, however, that the trial court
was obliged to give the entire promissory estoppel
charge sought by the defendants. The defendants also
asked the court to instruct the jury that ‘‘[t]he principle
of promissory estoppel applies only when there is no
enforceable contract between the parties.’’ That is not
strictly the law. The existence of a contract does not
create an absolute bar to a promissory estoppel claim
when that claim addresses aspects of the parties’ rela-
tionship that are collateral to the subject matter, and
does not directly vary or contradict the terms, of the
written agreement. See, e.g., Weiss v. Smulders, 313
Conn. 227, 248–53, 96 A.3d 1175 (2014); see also Sparton
Technology, Inc. v. Util-Link, LLC, 248 Fed. Appx. 684,
690 (6th Cir. 2007), cert. denied, 552 U.S. 1295, 128 S.
Ct. 1739, 170 L. Ed. 2d 539 (2008).
In the present case, the plaintiffs arguably made such
claims, namely, that Wesleyan promised DKE that, if it
took good faith steps to develop a viable residential
coeducation plan, it could then remain eligible to partic-
ipate in program housing under the new policy. As we
explain more fully in part III E of this opinion, the
plaintiffs’ promissory estoppel claim is cognizable, then,
but only insofar as they allege that Wesleyan made
promises and commitments that did not alter or contra-
dict the terms of the Greek Organization Standards
Agreement. The trial court should have instructed the
jury accordingly.
As we noted, when a proposed charge is largely accu-
rate but either contains inaccurate statements of the
law or omits relevant legal principles, the trial court is
obliged to accurately instruct the jury on the subject
matter of the proposed instruction if the instruction
speaks to a material and important feature of the case.
There is no doubt that that is true in the present case,
as the significance of the Greek Organization Standards
Agreement is a central issue and has been the defen-
dants’ primary legal defense from the outset.
D
Instructions Relating to CUTPA Claim
For similar reasons, we conclude that the trial court
should have instructed the jury as to the legal implica-
tions of the parties’ contract for the plaintiffs’ CUTPA
claim, and that its failure to do so entitles the defendants
to a new trial on that count. 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.’’
Accordingly, to prevail in a private cause of action under
CUTPA, a plaintiff must establish that the defendant
has (1) engaged in unfair methods of competition or
unfair or deceptive acts or practices (2) in the conduct
of any trade or commerce,12 (3) resulting in (4) an ascer-
tainable loss of money or property, real or personal, by
the plaintiff. See, e.g., Abrahams v. Young & Rubicam,
Inc., 240 Conn. 300, 306–307, 692 A.2d 709 (1997). See
generally R. Langer et al., 12 Connecticut Practice
Series: Connecticut Unfair Trade Practices, Business
Torts and Antitrust (2020–2021 Ed.) §§ 2.1 through 2.9,
pp. 13–111.
Once again, the defendants requested a legally valid
instruction—in this case that the jury must take the
parties’ written contracts into account in deciding
whether there was an unfair act or practice—but their
proposed instruction overstated the protection that
those contracts conferred. Although action in accor-
dance with a party’s express rights under a contract
ordinarily is shielded from CUTPA liability, liability may
attach when, for example, the defendant has acted in
bad faith with respect to the contract. 12 R. Langer et
al., supra, § 4.3, pp. 423–24, 452–54; see, e.g., Levitz,
Lyons & Kesselman v. Reardon Law Firm, P.C., Docket
No. 3:04cv00870 (JBA), 2005 WL 8166987, *5 (D. Conn.
March 31, 2005) (allegations of bad faith efforts to
impose modifications to existing contract implicate
CUTPA). As was the case with respect to promissory
estoppel, the trial court was required to instruct the
jury fully and accurately as to the significance of the
Greek Organization Standards Agreement in connection
with the plaintiffs’ CUTPA claim.
E
Wesleyan’s Contractual Special Defense
Although the trial court did not specify its reasons for
declining to give the defendants’ requested instructions,
we may assume that the reasons are similar to that on
the basis of which the court denied the defendants’
pretrial and posttrial motions, namely, that the Greek
Organization Standards Agreement did not shield the
university from liability. The court reasoned that the
plaintiffs’ claims were predicated not on an alleged
breach of the contract or on Wesleyan’s allegedly
improper motives for terminating the agreement but,
rather, on allegations that Wesleyan misled the plaintiffs
as to the standards that they would have to meet in order
to remain in program housing. The court concluded
therefrom that all of the plaintiffs’ claims were legally
viable, including their claims alleging that Wesleyan had
made an enforceable promise that the plaintiffs could
remain in program housing for three years while they
worked to coeducate the DKE House.
Although the general premises underlying the trial
court’s reasoning may be true, the conclusion does not
follow. Wesleyan had the right, under the parties’ con-
tract, to remove DKE from program housing at any time
upon thirty days’ notice. Wesleyan was free to make
that decision for reasons of student safety and gender
equity; on the basis of concerns—whether founded or
unfounded—that DKE members had engaged or would
engage in inappropriate conduct; out of a desire to try
to acquire the DKE House; due to Roth’s distrust of or
inability to work with DKE members or alumni; or for
any other reason not prohibited by law. Nor were Roth
and other representatives of the university under any
legal obligation to share with the plaintiffs and the Wes-
leyan community all of their true reasons and motiva-
tions for deciding to part ways with DKE. That is the
contract to which the plaintiffs agreed, and the law
shall not hear them to complain if Wesleyan chose to
exercise its contractual rights in a manner that they did
not anticipate or welcome.
It follows that the plaintiffs, having expressly
eschewed any claim that Wesleyan modified the one
year term of the Greek Organization Standards Agree-
ment, waived any rights thereunder, or breached the
provision of the agreement that requires consistent
treatment of the various residential fraternities, have
no legal grounds for contesting Wesleyan’s unilateral
decision not to readmit DKE into program housing for
the 2015–2016 academic year. Accordingly, in light of
the parties’ contract, the plaintiffs could not, as a matter
of law, reasonably have relied on any perceived extra-
contractual promise or representation by Wesleyan that
their participation in program housing would not be
terminated until at least 2018. The jury should have
been instructed accordingly.
At the same time, however, as we have explained,
the contract does not immunize Wesleyan from the
plaintiffs’ claims that the university acted in bad faith
in the process of renegotiating the Greek Organization
Standards Agreement for the 2015–2016 academic year.
Those claims arise from a novel and distinct question,
namely, what coeducation benchmarks the fraternity
would have to satisfy in order to remain potentially
eligible for participation in program housing beyond
2015. The jury reasonably could have found that that
issue was collateral to the 2014–2015 contract. Because
the trial court failed to give the jury sufficient guidance
as to a central legal issue, the defendants are entitled
to a new trial.
IV
TORTIOUS INTERFERENCE AND NEGLIGENT
MISREPRESENTATION INSTRUCTIONS
We next turn our attention to the plaintiffs’ tortious
interference with business expectancies and negligent
misrepresentation claims, and, specifically, the ques-
tion of whether the trial court correctly instructed the
jury with respect to damages. Because the jury was not
asked to specify the legal theory pursuant to which it
awarded damages to Kent, we must assume, in accor-
dance with the general verdict rule, that the $386,000
in unspecified damages could have been awarded on
the basis of any of the plaintiffs’ four causes of action.
See, e.g., Goodman v. Metallic Ladder Mfg. Corp., 181
Conn. 62, 65, 434 A.2d 324 (1980) (‘‘[when] a complaint
is divided into separate counts and a general verdict is
returned, it will be presumed, if the charge and all
rulings are correct on any count, that damages were
assessed as to that count and the verdict will be sus-
tained’’ (internal quotation marks omitted)). We have
concluded that a retrial is necessary on the promissory
estoppel and CUTPA counts, and, therefore, any award
of damages pursuant to those causes of action must be
vacated. See part III of this opinion. In this part, we
consider whether the jury’s damages award can be sus-
tained with respect to tortious interference or negligent
misrepresentation.
The following additional procedural history is rele-
vant to the defendants’ claim that the trial court failed
to instruct the jury correctly as to the law of damages.
In their amended request to charge, the defendants
sought the following jury instructions:
‘‘16. Damages—Lost Profits.
‘‘With respect to its claim for tortious interference,
[Kent] seeks damages for rents that it allegedly would
have earned from DKE House. In determining the
amount of any damages you award in this respect, you
must account for the costs that [Kent] would have
incurred in connection with renting DKE House to
undergraduate students. [Kent] may only recover dam-
ages in an amount equal to the money that it would
have earned from renting DKE House, after subtracting
the costs it would have incurred in doing so.
‘‘You must also keep in mind that the [Greek Organi-
zation] Standards Agreement . . . had a one year term
and permitted the parties to terminate upon thirty days’
notice for any reason. Wesleyan terminated the [Greek
Organization] Standards Agreement on February 13,
2015, effective June 18, 2015. Accordingly, [Kent’s] dam-
ages are limited to the lesser of its net profits for the
(i) thirty day period following termination on February
13, 2015; or (ii) remainder of the one year term covering
the time period of February 13, 2015, to June 18, 2015.
***
‘‘17. Damages—Reliance.
‘‘With respect to the plaintiffs’ negligent misrepresen-
tation claims, any damages you award should compen-
sate the plaintiffs for losses incurred as a result of
relying on the defendants’ alleged representations. In
other words, the amount awarded should put the plain-
tiffs in a position they would have been had they not
relied on the representations. The plaintiffs must estab-
lish the fair and reasonable value of any loss sustained
as a result of said reliance.’’ (Citations omitted.)
The trial court declined to give the proposed instruc-
tions or to instruct the jury separately as to the different
categories of damages that are available under the plain-
tiffs’ various legal theories. Instead, the court gave the
following general damages instructions: ‘‘The rule of
damages is as follows. Insofar as money can do it, the
plaintiff is to receive fair, just and reasonable compen-
sation for all losses which are proximately caused by
the defendants’ conduct. Under this rule, the purpose
of an award of damages is not to punish or penalize
the defendants for their conduct but to compensate the
plaintiff for his resulting losses. You must attempt to
put the plaintiff in the same position, as far as money
can do it, that he would have been in had the defendant
not so acted.
‘‘Our laws impose certain rules to govern the award
of damages in any case where liability is proven. Just
as the plaintiff has the burden of proving liability by a
fair preponderance of the evidence, he has the burden
of proving his entitlement to recover damages by a fair
preponderance of the evidence. To that end, the plaintiff
must prove both the nature and extent of each particular
loss for which he seeks to recover damages and that
the loss in question was proximately caused by the
defendant’s conduct. You may not guess or speculate
as to the nature or extent of the plaintiff’s losses. Your
decision must be based on reasonable probabilities in
light of the evidence presented at trial.
‘‘Once the plaintiff has proved the nature and extent
of his compensable losses, it becomes your job to deter-
mine what is fair, just and reasonable compensation
for those losses.
***
‘‘If you find that a party is entitled to damages, that
party must prove by a preponderance of the evidence
the amount of any damages to be awarded. The evi-
dence must give you a sufficient basis to estimate the
amount of damages to a reasonable certainty. Although
damages may be based on reasonable and probable
estimates, you may not award damages on the basis of
guess, speculation or conjecture.’’13
The jury, having found for the plaintiffs on all counts,
awarded Kent unspecified damages of $386,000. During
closing arguments, the plaintiffs’ counsel asked the jury
to award damages to compensate Kent for its lost reve-
nues following the 2014–2015 academic year as a result
of Wesleyan’s termination of the Greek Organization
Standards Agreement, as well as for Kent’s costs of
having to maintain the uninhabited DKE House since
June, 2015. The undisputed testimony of Kent’s treasur-
ers as to those losses, which counsel reiterated in clos-
ing, was that Kent lost potential gross revenues of
$216,000 in the 2015–2016 academic year, and that its
costs to maintain the empty DKE House was $170,000
in 2016–2017. The most plausible reading of the trial
record, then, is that the jury combined those figures
for a total of $386,000. In any event, the plaintiffs failed
to proffer any evidence from which the jury could have
calculated damages of that magnitude occurring prior
to June, 2015.
A
Tortious Interference
Turning our attention first to the tortious interference
count, we note that the defendants contend that any
damages (1) should be assessed in terms of net profits
and (2) must be cabined by the limited liability available
under the parties’ contract. The plaintiffs respond that
the general damages instructions that the court gave
provided the jury with sufficient guidance. We agree
with the defendants.
1
Although other types of damages may be available
under appropriate circumstances; see 4 Restatement
(Second), Torts § 774A (1), pp. 54–55 (1979); the stan-
dard method for calculating damages when a defendant
has interfered with a plaintiff’s ability to enter into a
prospective contract or to reap the benefits of an
existing contract is the plaintiff’s lost profits, ‘‘[t]hat is,
what its income above expenses would have been with
respect to the revenue lost.’’ (Emphasis added; internal
quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-
Tronics, Inc., 255 Conn. 20, 29, 761 A.2d 1268 (2000);
see also 4 Restatement (Second), Torts, supra, § 774A,
comment (b), p. 55. In the present case, at no time did
the trial court instruct the jury that it must subtract
Kent’s expenses from its anticipated lost revenues in
order to calculate the lost profits. There was undisputed
testimony from Kent’s officers that Kent was running
the DKE House on a more or less break even basis,
with little or no net profit. Yet, as we have discussed,
the most reasonable reading of the damages award is
that the jury awarded Kent compensation that included
Kent’s total anticipated lost revenues for the 2015–2016
academic year. Accordingly, we are compelled to con-
clude that the trial court’s failure to instruct the jury
as to the proper method of calculating tortious interfer-
ence damages resulted in an improper award.14
2
We also agree with the defendants that, whether as
a matter of damages or of liability, the trial court should
have instructed the jury that the Greek Organization
Standards Agreement limited the defendants’ potential
exposure to only those losses—if any—that Kent
incurred prior to the expiration of that contract on June
18, 2015. It is the prevailing view that a defendant cannot
be held liable in tortious interference merely for exercis-
ing its legitimate contractual rights, regardless of its
motive therefor. See, e.g., Omega Environmental, Inc.
v. Gilbarco, Inc., 127 F.3d 1157, 1166 (9th Cir. 1997)
(under Washington law, equipment manufacturer could
not be held liable for tortious interference with business
relations when manufacturer merely exercised express
contractual right to cancel distribution agreement),
cert. denied, 525 U.S. 812, 119 S. Ct. 46, 142 L. Ed. 2d
36 (1998); Allen v. Oil Shale Corp., 570 F.2d 154, 155
(6th Cir. 1978) (trial court properly directed verdict
for defendant when petroleum supply contracts were
terminable by either party at will); Hendler v. Cuneo
Eastern Press, Inc., 279 F.2d 181, 184 (2d Cir. 1960)
(protection of contractual right in defendant ordinarily
justifies interference with another’s contract); Mac
Enterprises, Inc. v. Del E. Webb Development Co., 132
Ariz. 331, 336, 645 P.2d 1245 (App. 1982) (lessor had
right to cancel lease of primary tenant and, therefore,
was not subject to damages for tortious interference
of contract between primary lessee and sublessee);
Florida Telephone Corp. v. Essig, 468 So. 2d 543, 544–45
(Fla. App. 1985) (when contract expressly reserved to
defendant right to promptly remove subcontractors’
employees from job, defendant was privileged to inter-
fere with subcontractor’s relationship with general con-
tractor, regardless of motive); Annot., ‘‘Liability for
Procuring Breach of Contract,’’ 26 A.L.R.2d 1227, 1259,
§ 23 (1952) (unqualified contractual right or privilege
can be exercised, regardless of motive, without incur-
ring liability).15
Moreover, the plaintiffs were entitled to recover only
those damages that were the direct result of the defen-
dants’ tortious interference with their reasonable busi-
ness expectancies. To prevail on such a claim, ‘‘it [must]
appear that, except for the tortious interference of the
defendant, there was a reasonable probability that the
plaintiff would have entered into a contract or made a
profit. . . . There must be some certainty that the
plaintiff would have gotten the contract but for the
fraud.’’ (Citations omitted; internal quotation marks
omitted.) Goldman v. Feinberg, 130 Conn. 671, 675, 37
A.2d 355 (1944); see also Golembeski v. Metichewan
Grange No. 190, 20 Conn. App. 699, 703, 569 A.2d 1157(‘‘[s]tated simply, to substantiate a claim of tortious
interference with a business expectancy, there must be
evidence that the interference resulted from the defen-
dant’s commission of a tort’’ (emphasis added)), cert.
denied, 214 Conn. 809, 573 A.2d 320 (1990).
In the present case, the plaintiffs’ claims are predi-
cated on the allegation that Wesleyan had no intention
of ever renewing its contract with them. Accordingly,
even if Wesleyan had engaged in no misleading or other-
wise tortious conduct, and had simply exercised its
contractual right to terminate the Greek Organization
Standards Agreement in a transparent and straightfor-
ward manner, the plaintiffs would have been in no bet-
ter position with respect to their future contractual
relations with Wesleyan students after June 18, 2015.
Kent could not have harbored any reasonable expecta-
tion that Wesleyan would continue to bless and facili-
tate its business with DKE members after that time.
Accordingly, damages, if any were incurred, were avail-
able to compensate Kent for interference with its rights
only under the 2014–2015 contract.
For all of these reasons, we conclude that the trial
court’s failure to correctly instruct the jury as to the
law governing the damages that a plaintiff may recover
for tortious interference with its business expectancies
requires a retrial on that count. See, e.g., Herrera v.
Madrak, 58 Conn. App. 320, 326, 752 A.2d 1161 (2000)
(‘‘[t]he general rule is that [t]he decision to retain the
jury verdict on the issue of liability and order a rehearing
to determine only the issue of damages should never
be made unless the court can clearly see that this is
the way of doing justice in [a] case’’ (internal quotation
marks omitted)).
B
Negligent Misrepresentation
At trial, the defendants also sought an instruction
that, with respect to the plaintiffs’ negligent misrepre-
sentation claim, any damages awarded should be lim-
ited to those necessary to compensate the plaintiffs for
losses incurred as a result of relying on the defendants’
alleged representations. Although the defendants do
not expressly reference this instruction in their brief
to this court, they make essentially the same argument
on appeal in contending that there was insufficient evi-
dence of detrimental reliance to sustain the jury’s ver-
dict on the plaintiffs’ negligent misrepresentation claim.
For the sake of expediency, we address the defendants’
claim in the context of the trial court’s jury instructions
rather than as a challenge to the sufficiency of the
evidence.
As a general matter, the damages available to a plain-
tiff in connection with a claim for negligent misrepre-
sentation are measured by the plaintiff’s costs incurred
in reliance on the defendant’s misstatements and false
promises, rather than by the profits that the plaintiffs
hoped to accrue therefrom. See 3 Restatement (Sec-
ond), Torts § 552B (1) (b) and (2), p. 140 (1977) (plaintiff
may recover for pecuniary loss sustained in reliance
on negligent misrepresentation but recovery does not
encompass benefit of plaintiff’s contract with defen-
dant);16 see also Bailey Employment System, Inc. v.
Hahn, 545 F. Supp. 62, 73 and n.10 (D. Conn. 1982)
(restitution is appropriate measure of damages with
respect to CUTPA claim predicated on theory of misrep-
resentation), aff’d mem., 723 F.2d 895 (2d Cir. 1983),
and aff’d mem. sub nom. Hahn v. Leighton, 723 F.2d
895 (2d Cir. 1983); Glazer v. Dress Barn, Inc., 274 Conn.
33, 78, 873 A.2d 929 (2005) (damages in negligent mis-
representation action are limited to pecuniary losses
caused by justifiable reliance on information at issue);
New London County Mutual Ins. Co. v. Sielski, 159
Conn. App. 650, 662, 123 A.3d 925 (indicating that Con-
necticut has adopted § 552B of the Restatement (Sec-
ond) of Torts), cert. granted, 319 Conn. 956, 125 A.3d
533 (2015) (appeal withdrawn June 29, 2016); Bokma
Farms, Inc. v. State, 302 Mont. 321, 325, 14 P.3d 1199(2000) (loss of anticipated profits was not recoverable
because it resulted from lack of enforceable contract,
rather than from plaintiff’s reliance on defendant’s neg-
ligent misrepresentations).
In the present case, although the plaintiffs testified
that they had relied to their detriment on Wesleyan’s
alleged misrepresentations, such as by hiring an archi-
tect and otherwise preparing for coeducation of the
DKE House, they made no attempt to quantify those
costs. Rather, it is apparent that, in light of the evidence
and arguments presented at trial, the jury’s award of
damages was intended to compensate Kent not for its
reliance damages but, instead, for its expectation, or
benefit of the bargain losses. Because the trial court
failed to instruct the jury as to the proper measure of
Kent’s losses in connection with the plaintiffs’ negligent
misrepresentation claim, a new trial is required on that
claim as well.
V
SUFFICIENCY OF THE EVIDENCE
We next consider the defendants’ claim that there was
insufficient evidence for the jury to find the defendants
liable under each of the plaintiffs’ four causes of
action.17 Our resolution of the defendants’ instructional
error claims in parts III and IV of this opinion largely
resolves this claim as well. Specifically, although the
Greek Organization Standards Agreement substantially
cabins the potential scope of Wesleyan’s liability, as
a matter of law, that agreement does not immunize
Wesleyan against the plaintiffs’ claim that it negotiated
the renewal of the agreement in bad faith.18 We conclude
that there was sufficient evidence for the jury to have
found the defendants liable to that limited extent.
At trial, the plaintiffs sought to establish, among other
things, that, during the negotiation period, Wesleyan
promised them that they would not have to coeducate
at the membership level in order to remain eligible to
participate in program housing and also that Wesleyan
would work with them to develop a viable residential
coeducation plan for the DKE House. They further
sought to establish that Wesleyan—or at least Roth—
never intended to keep any of those promises. Rather,
the coeducation plan was, from the start, a pretext
to conceal Wesleyan’s true intentions, which allegedly
were to completely eliminate the residential fraterni-
ties, to force Kent to sell the DKE House to Wesleyan,
and/or to depopulate the DKE House due to Roth’s
personal dislike or distrust of DKE. Finally, the plaintiffs
sought to establish that they had relied in various ways
on Wesleyan’s purported false promises and misrepre-
sentations.
Although the plaintiffs’ case was hardly overwhelm-
ing, construing the evidence in the light most favorable
to sustaining the verdict, as we must, we are persuaded
that there was sufficient evidence to establish those
allegations. The discussion that follows is not a compre-
hensive list of all of the trial evidence in support of the
plaintiffs’ various allegations but, rather, merely some
examples of the evidence on the basis of which the jury
reasonably could have found in favor of the plaintiffs.
With respect to Wesleyan’s alleged promises, several
witnesses testified that, during a November 20, 2014
meeting, Whaley informed members and representa-
tives of the plaintiffs that DKE would not be required
to coeducate its membership in order to remain in pro-
gram housing. Whaley further represented not only that
Wesleyan would work with the plaintiffs to accomplish
the residential coeducation of the DKE House, but also
that the deadline to fully coeducate the house could be
extended, even beyond the three years that Roth had
announced, as long as the plaintiffs continued to make
substantial progress toward that goal. There was further
testimony that a second representative of the university,
Wesleyan’s vice president of development, Barbara Jan
Wilson, offered similar commitments in an e-mail prior
to that meeting.
In addition, in a January 21, 2015 e-mail to representa-
tives of the plaintiffs, Whaley wrote that ‘‘Wesleyan
is willing to consider DKE for 2015–2016 [p]rogram
[h]ousing status if DKE is willing to execute [certain
residential coeducation benchmarks] . . . . I stand
ready to assist you in any reasonable way so that you
can refine your plan to comply with our program hous-
ing requirements and remain in program housing for
the coming academic year (2015–2016).’’
During his trial testimony, Whaley arguably could be
understood to acknowledge that Roth, too, had made
promises of this sort to the plaintiffs. During Whaley’s
redirect examination, the plaintiffs’ counsel asked him:
‘‘Well, when somebody gives their word, and they say
you’re going to have three years to implement it, you
can—like in this case. The president said there’s going
to be three years to implement coeducation. You take
that as a promise from the president, and . . . people
could rely on that, right?’’ Whaley responded: ‘‘That was
the timeframe that was outlined.’’ Again, on redirect
examination, the plaintiffs’ counsel asked Whaley about
Roth’s original, September 22, 2014 coeducation announce-
ment, in which Roth stated that ‘‘[t]he university looks
forward to receiving plans from the residential fraterni-
ties to coeducate, after which it will work closely with
them to make the transition as smooth as possible.’’
Again, Whaley could be understood to recognize that
the announcement represented a promise made by Roth
to the Wesleyan community.
The record also contains evidence from which the
jury reasonably could have concluded that those vari-
ous promises were insincere and that Roth never
intended to permit DKE to remain in the program hous-
ing system or to assist the fraternity in that process.
On December 4, 2014, Whaley sent an e-mail to the
plaintiffs reiterating that they could remain eligible for
program housing even if they did not coeducate DKE
as an organization and admit women as full members.
While Whaley was continuing to make those representa-
tions, however, Wesleying, the Wesleyan student blog,
published an interview with Roth in which he appeared
to contradict Whaley’s promises. Roth was quoted as
stating that ‘‘there won’t be any single sex residential
Greek organizations in five years. . . . [I]f they don’t
have . . . women as equal and full members, then they
won’t exist [as] residential organizations at Wesleyan.’’
Roth was aware at the time that DKE’s national organi-
zation barred local chapters from admitting women as
members and, therefore, that, unless and until the
national organization changed its policy to permit
women members, as certain other fraternal organiza-
tions had, DKE would be unable to comply with the
condition that he had articulated.
There also was evidence from which the jury reason-
ably could have found that Roth and Whaley were driven
by a hostility toward Greek organizations and harbored
a desire to eliminate all residential fraternities. Minutes
of an April 22, 2014 meeting between the two men, for
example, express the opinion that ‘‘eliminating Greek
organizations would be ideal . . . .’’
In addition, there was evidence from which the jury
reasonably could have found that Roth was motivated
by a personal dislike of DKE and the DKE House in
particular. There was testimony that he repeatedly had
complained about noise emanating from the house,
which is situated directly across from his own residence
in the center of the Wesleyan campus. Moreover, during
direct examination, Roth acknowledged that, in the
past, he was personally offended that certain DKE mem-
bers had referred to him as a ‘‘fascist.’’19
Finally, there was evidence from which the jury rea-
sonably could have found that Roth never intended
to permit the plaintiffs to remain in program housing
because he believed that curtailing their access to Wes-
leyan student renters and, thus, their cash flow, would
force them to sell the DKE House to Wesleyan. In a
July 17, 2014 memorandum to other Wesleyan adminis-
trators, Whaley discussed various options as to the
future of residential Greek organizations at the univer-
sity. One option he outlined was to restrict or terminate
the Greek houses. Whaley wrote: ‘‘Wesleyan could offer
to buy the houses . . . . If we then acquire Greek
houses subsequently, we can divest of 100 beds in [dor-
mitories] that are in poor condition—a good thing for
the overall housing program!’’ One month later, on
August 20, 2014, Roth wrote to Wesleyan’s chairman of
the board of trustees, Joshua Boger, that, ‘‘[i]f we don’t
make the [Greek] houses [off limits] to Wesleyan stu-
dents for social uses, this will be a disaster. . . . If
we don’t close [down] the houses with the hopes of
acquiring them, then we shouldn’t go down this road
at all.’’ This evidence was consistent with testimony
from various DKE alumni that Wesleyan administrators
long had coveted the centrally located DKE property
and recently had inquired as to whether the DKE House
was for sale.
There also was evidence from which the jury could
have determined that, during the negotiation period,
the plaintiffs relied to their detriment on Wesleyan’s
false promises and misrepresentations. There was testi-
mony, for example, that, after having been assured that
they could remain eligible for program housing without
coeducating at the membership level, the plaintiffs
began to work with an architect to develop plans for the
renovations that would be necessary to accommodate
female residents.20
We conclude, then, that there was sufficient evidence
for the jury to have found that Wesleyan intentionally
misled the plaintiffs during the negotiation period, lead-
ing them to reasonably rely on the university’s represen-
tations that they could remain eligible for program
housing if they agreed to coeducate the DKE House and
simply submitted a bare-bones, preliminary residential
coeducation plan, such as the one submitted by Psi
Upsilon, when, in fact, Wesleyan was secretly deter-
mined to terminate its relationship with Kent in the
hope of being able to acquire the DKE property. We do
not suggest that this reading of the record is the most
reasonable, or that we would have been persuaded to
embrace the plaintiffs’ theories if we had been the triers
of fact. But we are not prepared to say that no reason-
able jury, presented with this evidence, could have
so found.21
VI
ISSUES LIKELY TO ARISE ON REMAND
The defendants have raised various other claims of
error. Although some of them need not be addressed
at this time, in light of our disposition of the defendants’
appeal, we offer brief guidance as to the following two
issues, which may be expected to confront the trial
court again on retrial: (1) whether the trial court prop-
erly instructed the jury as to certain other legal stan-
dards that govern a CUTPA claim, and (2) whether the
trial court abused its discretion or acted contrary to
law in issuing a mandatory injunction requiring that the
parties reinstate and maintain their contractual rela-
tions for three additional years.
A
Unfair Trade Practices Standard
We first address the defendants’ contention that the
trial court improperly instructed the jury regarding the
definition of unfair trade practices under CUTPA. Con-
sistent with this court’s precedent, the trial court
instructed the jury that it should find that Wesleyan
committed an unfair trade practice if Wesleyan’s con-
duct violated the so-called cigarette rule. The defen-
dants contend that, because the Federal Trade
Commission (FTC) and the federal courts no longer
apply the cigarette rule as the test governing unfair trade
practice claims; see, e.g., Soto v. Bushmaster Firearms
International, LLC, 331 Conn. 53, 123–24 n.46, 202 A.3d
262, cert. denied sub nom. Remington Arms Co., LLC
v. Soto, U.S. , 140 S. Ct. 513, 205 L. Ed. 2d 317(2019); Connecticut should follow suit and adopt the
now prevailing federal standard, the substantial unjusti-
fied injury test. We take this opportunity to clarify that,
until such time as the legislature chooses to enact a
different standard, the cigarette rule remains the opera-
tive standard for unfair trade practice claims under
CUTPA.
The historical context of this issue is as follows. ‘‘[I]n
determining whether a practice violates CUTPA we
have adopted the criteria [previously] set [forth] in the
cigarette rule by the [FTC] for determining when a
practice is unfair: (1) [w]hether the practice, without
necessarily having been previously considered unlaw-
ful, 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 [com-
mon-law], statutory, or other established concept of
unfairness; (2) whether it is immoral, unethical, oppres-
sive, or unscrupulous; [or] (3) whether it causes sub-
stantial injury to consumers, [competitors or other
businesspersons].’’ (Internal quotation marks omitted.)
Landmark Investment Group, LLC v. CALCO Con-
struction & Development Co., 318 Conn. 847, 880, 124
A.3d 847 (2015). ‘‘[T]he cigarette rule . . . standard
originated in a policy statement of the [FTC] issued
more than one-half century ago . . . and rose to promi-
nence when mentioned in a footnote in Federal Trade
Commission v. Sperry & Hutchinson Co., 405 U.S. 233,
244–45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972). The
decades since have seen a move away from the cigarette
rule at the federal level. . . . That move culminated
with a revision of the FTC Act by Congress in 1994,
which codified the limitations on the FTC’s authority
to regulate unfair practices. . . . This court has charac-
terized the federal standard for unfair trade practices
contained therein as a more stringent test known as
the substantial unjustified injury test, under which an
act or practice is unfair [only] if it causes substantial
injury, it is not outweighed by countervailing benefits to
consumers or competition, and consumers themselves
could not reasonably have avoided it.’’ (Citations omit-
ted; internal quotation marks omitted.) Soto v. Bush-
master Firearms International, LLC, supra, 331 Conn.
123–24 n.46.
As the defendants correctly note, members of this
court have, at times, indicated an openness to revisiting
the question of whether to abandon the cigarette rule
and to adopt the substantial unjustified injury test as
the proper standard for unfair trade practices under
CUTPA. See, e.g., Naples v. Keystone Building & Devel-
opment Corp., 295 Conn. 214, 238–39, 990 A.2d 326(2010) (Zarella, J., concurring). At the same time, not-
withstanding the questions raised in those decisions,
we consistently have continued to apply the cigarette
rule as the law of Connecticut. E.g., Landmark Invest-
ment Group, LLC v. CALCO Construction & Develop-
ment Co., supra, 318 Conn. 880.
In Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co.,
317 Conn. 602, 119 A.3d 1139 (2015), we remarked that
this court had observed ten years earlier that the ciga-
rette rule is no longer the guiding rule under federal
unfairness law but that, in the intervening decade, ‘‘the
legislature ha[d] given no indication that it disap-
prove[d] of our continued use of the cigarette rule as
the standard for determining unfairness under CUTPA,
notwithstanding the federal courts’ abandonment of
that rule . . . .’’ Id., 622 n.13. In Artie’s Auto Body,
Inc., we again flagged the issue for the legislature, stat-
ing that, ‘‘[b]ecause of the likelihood that this court will
be required to address this issue in a future case . . .
the legislature may wish to clarify its position with
respect to the proper test.’’ Id. Five additional years
have passed since we issued that invitation, and, still,
the legislature has given no indication that it is dissatis-
fied with our continued application of the more con-
sumer friendly cigarette rule. Accordingly, there now
is a powerful argument that the legislature has acqui-
esced in our ongoing application of that standard. See
12 R. Langer et al., supra, § 2.2, p. 60 (noting that one
reason to retain cigarette rule standard is that this court
‘‘has applied the current standard for [twenty] years
without legislative action to change the standard’’).
The contrary argument, that we should adopt the
current federal standard for unfair trade practices,
relies primarily on § 42-110b (b), which provides that
‘‘[i]t is the intent of the legislature that in construing
subsection (a) of this section, the [C]ommissioner [of
Consumer Protection] and the courts of this state shall
be guided by interpretations given by the Federal Trade
Commission and the federal courts to Section 5 (a) (1)
of the Federal Trade Commission Act (15 [U.S.C. §] 45
(a) (1)), as from time to time amended.’’ (Emphasis
added.) There are several reasons, however, why § 42-
110b (b) does not compel us to adopt the substantial
unjustified injury test. First, the current statutory lan-
guage was added in a 1976 amendment, replacing a
provision that stated that ‘‘[u]nfair or deceptive acts or
practices . . . shall be those practices . . . deter-
mined to be unfair . . . in rules, regulations or deci-
sions interpreting the Federal Trade Commission Act
. . . .’’ (Emphasis added.) General Statutes (Rev. to
1975) § 42-110b (a); see Public Acts 1976, No. 76-303,
§ 1. The legislature’s apparent purpose in transitioning
from the ‘‘determined to be unfair’’ language to the
more flexible ‘‘guided by’’ language was to make clear
that the Commissioner of Consumer Protection and
our state courts are not to be constrained, in applying
CUTPA, to find actionable only those practices that
have been deemed unlawful under the FTC Act. 12 R.
Langer et al., supra, § 2.6, p. 92.
Second, ‘‘[w]e have . . . repeatedly looked to the
reasoning and decisions of the Supreme Judicial Court
of Massachusetts with regard to the scope of CUTPA.’’
Normand Josef Enterprises, Inc. v. Connecticut
National Bank, 230 Conn. 486, 521, 646 A.2d 1289(1994). Although the Massachusetts counterpart to
CUTPA contains language substantially similar to that
of § 42-110b (b); see Mass. Ann. Laws ch. 93A, § 2 (Lex-
isNexis 2012);22 the courts of that state have continued
to define unfair trade practices according to a version
of the cigarette rule. See, e.g., UBS Financial Services,
Inc. v. Aliberti, 483 Mass. 396, 412, 133 N.E.3d 277(2019); see also 12 R. Langer et al., supra, § 2.6 p. 91
n.1. Indeed, Connecticut and Massachusetts are two
among sixteen states—out of twenty-eight that prohibit
unfair trade practices generally—that continue to apply
the cigarette rule, even though a number of those states’
unfair trade practice statutes likewise counsel defer-
ence to the FTC’s interpretations. 12 R. Langer et al.,
supra, § 2.2, pp. 53–54 and n.128.
One possible reason for this is that the federal stan-
dard is applied primarily in the regulatory context—
there is no private right of action under the FTC Act—
whereas CUTPA and sister state consumer protection
laws often must be applied by juries in private consumer
actions. See id., pp. 56–58. The substantial unjustified
injury test is less readily administrable by a jury and,
therefore, arguably ill-suited for state statutes such as
CUTPA. See id. In any event, for all the foregoing rea-
sons, we reject the defendants’ argument that the trial
court improperly instructed the jury as to the first ele-
ment of a private CUTPA claim. Until such time as the
legislature chooses to enact a different standard, the
cigarette rule is and will remain the operative standard
for unfair trade practice claims under CUTPA.
B
Mandatory Injunction
Lastly, we consider the defendants’ claim that, if their
conduct did violate CUTPA, the trial court abused its
discretion or acted contrary to law when it issued a
mandatory injunction requiring Wesleyan to enter into
a new contract with the plaintiffs that allows them again
to house Wesleyan students as a program housing
option and that affords them three years in which to
fully coeducate the DKE House. We agree that, even
construing the factual record in a manner consistent
with the jury verdict and giving due deference to the
trial court’s credibility determinations, the injunction
issued was not warranted.
The following additional procedural history is rele-
vant to this issue. After the jury returned its verdict in
favor of the plaintiffs, the plaintiffs filed a motion in
the trial court seeking equitable relief in the form of
specific performance. Specifically, they sought an order
requiring Wesleyan to include the DKE House as a pro-
gram housing option and allowing DKE members full
access to reside and engage in social activities at the
house ‘‘as they had prior to [the implementation of
Wesleyan’s coeducation] policy . . . .’’ (Internal quota-
tion marks omitted.) The trial court concluded that
equitable relief was necessary to make the plaintiffs
whole because, among other things, the plaintiffs had
participated in Wesleyan’s program housing system for
many years, other residential Greek organizations had
been given three years in which to implement a viable
coeducational scheme, and Wesleyan had committed
to giving 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.
Consistent with those findings, the court issued the
following order: ‘‘Kent . . . and DKE are ordered to
submit and reaffirm in current form the plan for coedu-
cation of 276 High Street 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 [Wesleyan], 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 [Organi-
zation] Standards Agreement that Wesleyan enters into
with other residential Greek organizations. The Greek
[Organization] 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.’’ (Citation
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 Wes-
leyan 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 obli-
gations they have committed to under their coeducation
plan. It is also expected that, as to the plaintiffs, Wes-
leyan will apply the same standards for compliance
with the plan of coeducation of residential Greek orga-
nizations that it has applied to other similar organiza-
tions.’’ The court finally noted: ‘‘The order issued herein
is not intended to overturn, modify, or thwart Wesley-
an’s plan of coeducation of residential Greek organiza-
tions. To the contrary, in fashioning this relief, the court
has sought to provide an instrumentality to bring about
compliance with the coeducation plan by all parties.’’
The defendants contend that the court’s order, as
refined and illuminated by the accompanying guidance,
is both legally unsound and an abuse of the court’s dis-
cretion.
The following principles pertaining to injunctive
relief govern our review of this issue. As a general
matter, ‘‘[t]he granting of [such] relief is within the
trial court’s discretion. In exercising this discretion,
the court must balance the competing interests of the
parties . . . and [t]he relief granted must be compati-
ble with the equities of the case.’’ (Citation omitted;
internal quotation marks omitted.) Dukes v. Durante,
192 Conn. 207, 225, 471 A.2d 1368 (1984). Specifically,
the trial court ‘‘may consider and balance the injury
complained of with that which will result from interfer-
ence by injunction.’’ Moore v. Serafin, 163 Conn. 1, 6,
301 A.2d 238 (1972).
More stringent standards, however, govern the issu-
ance of mandatory injunctions. Unlike a prohibitory
injunction—an order of the court that merely maintains
the status quo by restraining a party from the commis-
sion of some act—a mandatory injunction is a court
order that commands a party to perform some affirma-
tive act. E.g., Tomasso Bros., Inc. v. October Twenty-
Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994).
‘‘Relief by way of mandatory injunction is an extraordi-
nary remedy granted in the sound discretion of the court
[but] only under compelling circumstances.’’ (Internal
quotation marks omitted.) Monroe v. Middlebury Con-
servation Commission, 187 Conn. 476, 480, 447 A.2d
1 (1982); see also Cheryl Terry Enterprises, Ltd. v.
Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004)
(‘‘[m]andatory injunctions are . . . disfavored as a
harsh remedy and are used only with caution and in
compelling circumstances’’ (internal quotation marks
omitted)), overruled in part on other grounds by Trem-
ont Public Advisors, LLC v. Connecticut Resources
Recovery Authority, 333 Conn. 672, 217 A.3d 953 (2019).
Mandatory injunctions are deemed to be ‘‘drastic’’ reme-
dies; Herbert v. Smyth, 155 Conn. 78, 85, 230 A.2d 235(1967); because, among other things, they may place
the trial court in the undesirable position of having
to monitor, construe, and police the parties’ private
conduct, relationship, and contractual dealings on an
ongoing basis. See, e.g., Cheryl Terry Enterprises, Ltd.
v. Hartford, supra, 651 n.22. Those concerns are height-
ened in a case such as this, which arises in a unique
context involving student living arrangements at a pri-
vate university occurring within a highly charged atmo-
sphere arising from an ongoing local and national
dialogue about gender equality and student safety in
the higher education setting.23
Applying these principles to the present appeal, we
conclude that the trial court abused its discretion in
issuing an injunction that requires Wesleyan (1) to rein-
state the DKE House as a program housing option,
(2) to enter into a new Greek Organization Standards
Agreement with the plaintiffs, and (3) to afford the
plaintiffs three years in which to coeducate. We reach
this conclusion primarily because, depending on how
the ambiguous terms of the trial court’s injunction are
interpreted, either the order is unenforceable and,
therefore, a nullity, or it impermissibly expands the
terms of the parties’ contractual relationship beyond
those to which they agreed.
The court’s order requires the parties to enter into
‘‘the same Greek [Organization] Standards Agreement
that Wesleyan enters into with other residential Greek
organizations.’’ Those agreements, including ones
renewed following Wesleyan’s announcement of the
new residential coeducation policy; see footnote 10 of
this opinion; permit Wesleyan to terminate the relation-
ship without cause upon thirty days’ notice. The trial
court indicated that its ‘‘order is without prejudice to
Wesleyan . . . to enforce its rights under the agree-
ment . . . .’’ Accordingly, the most reasonable reading
of the injunction is that, if Wesleyan were required to
enter into a new Greek Organization Standards Agree-
ment with the plaintiffs, nothing would bar the univer-
sity from immediately giving notice of its plan to
terminate that agreement, assuming that its officers
remain of the belief that they cannot successfully part-
ner with DKE, whether due to personal animus, distrust
arising from the present litigation, incompatible visions
of residential coeducation, or other reasons.
It is blackletter law that ‘‘an injunction will not be
granted against a party who can substantially nullify
the effect of the order by exercising a power of termina-
tion or avoidance.’’ 3 Restatement (Second), Contracts,
supra, § 368 (1), p. 195; see also id., § 368, comment
(a), pp. 195–96 (injunction is pointless if party may
terminate on short notice or if notice period is substan-
tial, such as thirty days or more, but substantial perfor-
mance cannot be rendered within that period). If the
injunction at issue in the present case went into effect
today, and Wesleyan immediately exercised its right
to terminate and gave the plaintiffs thirty days’ notice
thereof, the plaintiffs’ right to participate in program
housing would be extinguished before the commence-
ment of the next academic semester. Under this inter-
pretation of the trial court’s order, then, the injunction
is unenforceable and, thus, is without legal effect.
On the other hand, the trial court also provided guid-
ance implying that its order should be implemented as
if (1) Wesleyan had accepted the plaintiffs’ coeducation
plan, (2) the plaintiffs had been afforded three years in
which to coeducate, and (3) Wesleyan had agreed to
apply the same coeducation standards to DKE as to the
university’s other residential fraternities. If we under-
stand this guidance to mean that Wesleyan cannot ter-
minate its relationship with the plaintiffs for three years
after the order goes into effect, or at least that Wesleyan
cannot do so for any currently existing reasons, then
the injunction becomes problematic in various other
ways. Most of these boil down to the fact that the trial
court has imposed a binding, long-term relationship,
one requiring ongoing collaboration and cooperation,
on parties who, despite their decades long partnership,
have never formally chosen to enter into that sort of
contractual agreement, and between whom mutual
respect and trust have been lost. As we noted, those
concerns are heightened in the present case, situated
as they are at the intersection of an intense, ongoing
debate over gender inclusion, campus violence, and the
role of the residential experience in the higher educa-
tion mission.
‘‘It is axiomatic that courts do not rewrite contracts
for the parties.’’ (Internal quotation marks omitted.)
Gibson v. Capano, 241 Conn. 725, 732, 699 A.2d 68(1997). Accordingly, ‘‘it is well settled that we will not
import terms into [an] agreement . . . that are not
reflected in the contract.’’ (Internal quotation marks
omitted.) Ramirez v. Health Net of the Northeast, Inc.,
285 Conn. 1, 16, 938 A.2d 576 (2008). In particular, a
court may not, to effectuate the parties’ ability to
achieve their contractual ends, impose orders that
expand or exceed the terms of their agreement. See,
e.g., Nassra v. Nassra, 139 Conn. App. 661, 669, 56
A.3d 970 (2012). In the present case, the residential
fraternities and Wesleyan always have chosen to enter
into one year contracts terminable at will by either
party. As we noted, there is no claim, and the trial court
made no finding, that Wesleyan agreed to waive or
modify this provision of the contract. Accordingly, if
the trial court intended to bind Wesleyan to a three
year housing agreement with the plaintiffs, that aspect
of the order represented an expansion of the terms
of the Greek Organization Standards Agreement and
was improper.
An injunction that nullifies Wesleyan’s long-standing
contractual right to terminate its relationship with the
plaintiffs at its sole discretion would be especially trou-
bling in that it would place the university at a decided
disadvantage relative to the fraternity. If disagreements
arose over coeducation, discipline, or other matters, as
they quite likely would, the plaintiffs would remain free
to cut ties with Wesleyan as they saw fit, whereas Wes-
leyan could part ways only with the court’s blessing.
Enforcing Wesleyan’s extracontractual promises in that
manner would destroy the mutuality of obligation for
which the parties have bargained. See, e.g., Bower v.
AT & T Technologies, Inc., 852 F.2d 361, 364 (8th
Cir. 1988).
The defendants suggest various additional, albeit
related, rationales as to why the trial court’s issuance
of a mandatory injunction was improper. They contend,
for example, that the injunction (1) is inconsistent with
the limited scope of their potential liability, as cabined
by the Greek Organization Standards Agreement, (2)
improperly forces hostile, mistrustful parties to enter
into a prolonged relationship that will require close,
ongoing collaboration on issues ranging from academic
programming to student safety, (3) necessitates a
degree of ongoing judicial supervision over and inter-
vention into the parties’ dealings that is plainly dispro-
portionate to any potential benefits to be gained
therefrom, and (4) impermissibly intrudes on Wesley-
an’s academic freedom and responsibility to ensure stu-
dent safety. Although these arguments may well have
merit, we need not address them further at this time
in light of our foregoing discussion concerning the
impropriety of the injunctive relief issued.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins, Kahn and Ecker. Although Justice Palmer was not present
when the case was argued before the court, he has read the briefs and
appendices, and listened to a recording of the oral argument prior to partici-
pating in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** March 5, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The case was withdrawn as to two other plaintiffs, Tucker Ingraham
and Zac Cuzner, prior to trial.
2
Our resolution of the appeal on this ground makes it unnecessary to
resolve the parties’ other claims. In part VI of this opinion, however, we
offer some guidance on issues that are likely to arise again on retrial. See,
e.g., State v. T.R.D., 286 Conn. 191, 206, 942 A.2d 1000 (2008).
3
No evidence was presented at trial that any female had complained of
any improper or offensive treatment by a Wesleyan DKE member or at the
DKE House. Nor was any evidence presented that there ever had been a
complaint of sexual assault or binge drinking at the DKE House.
4
Aside from DKE and Psi Upsilon, the only other two residential fraterni-
ties active at Wesleyan at the time were Alpha Delta Phi, which already
had coeducated at the membership level, and Beta Theta Pi, which was
subsequently suspended and lost its charter due to an unrelated incident.
5
The jury declined the defendants’ invitation to find that Kent had failed
to mitigate its losses by, for example, renting the DKE House to other parties.
6
With respect to plaintiff Jancze, the defendants argued that his claims
were barred by the housing contract that all Wesleyan students sign, which
expressly provides that students are not guaranteed to receive a specific
housing assignment of their choosing.
7
All subsequent references to the trial court are to Domnarski, J.
8
That injunction has been stayed pending the resolution of this appeal.
9
Any expectation by the plaintiffs that they would be entitled to play a
perpetual role in the Wesleyan community would have been especially ill-
founded in light of the ongoing national debate over the role of fraternities
on college campuses and, in particular, the apparent trend toward abolishing
Greek systems among Wesleyan’s peer institutions. See, e.g., N. Horton,
‘‘Traditional Single-Sex Fraternities on College Campuses: Will They Survive
in the 1990s?,’’ 18 J.C. & U.L. 419, 422 and n.8 (1992).
10
It is noteworthy in this respect that the other residential fraternities,
Psi Upsilon and Alpha Delta Phi, which, the plaintiffs contend, received
preferential treatment from the university, have continued to enter into
Greek Organization Standards Agreements that are freely terminable by
either party without cause. There is no indication, then, that Wesleyan’s
public commitment to support coeducation of the residential fraternities
over a three year period has been interpreted as a modification of its contrac-
tual rights under the agreement.
11
The court instructed the jury as follows: ‘‘The plaintiffs claim that they
are entitled to recover based upon a legal principle known as promissory
estoppel. For you to find for the plaintiffs under this legal principle, the
plaintiffs must establish that (1) the defendants made clear and unambiguous
promises, (2) the defendants reasonably should have expected the plaintiffs
to take acts in reliance on those promises, (3) the plaintiffs reasonably acted
based upon those promises, and (4) enforcement of that promise is the only
way to avoid injustice to the plaintiffs.’’
12
Because the issue has not been raised, we express no opinion as to
whether the provision of student housing by a private university such as
Wesleyan is performed in the conduct of its trade or commerce for purposes
of CUTPA or is so peripheral to its central educational mission as to fall
outside CUTPA’s purview.
13
The court also instructed the jury regarding mitigation of damages and
the rule against double recovery of damages.
14
We do not mean to suggest that Kent’s compensable injuries necessarily
were limited to its lost profits. For example, if Kent was responsible for
fixed costs, such as building maintenance, insurance, and property taxes
for the DKE House, which costs Kent was required to continue to shoulder
regardless of whether the house was occupied by paying students, then
those costs also were compensable losses. See, e.g., Hi-Shear Technology
Corp. v. United States, 53 Fed. Cl. 420, 444 (2002), aff’d, 356 F.3d 1372 (Fed.
Cir. 2004). One would assume, however, that a not insignificant portion of
the lost rent would have gone to cover variable costs such as janitorial
services, utilities, and the provision of food for the students. The jury should
have been instructed that lost revenues that merely would have offset those
sorts of variable costs, which Kent did not have to pay while the DKE
House sat empty, were not available as damages. To the extent that the
jury calculated benefit of the bargain losses using estimates of Kent’s lost
gross revenues for certain years, that was not a valid method of calculating
damages because the jury failed to subtract costs that Kent saved as a result
of not doing business with Wesleyan. Hypothetically, then, if Kent had spent
$50,000 providing food for student residents of the DKE House, and Kent’s
gross revenues included $50,000 that the students paid to Kent to cover the
costs of providing that food, Kent would not be entitled to recover that
unspent $50,000 as expectation damages.
15
Should the issue arise on remand, we note that the defendants, had
they sought one, also would have been entitled to an instruction as to the
significant limits that the Greek Organization Standards Agreement placed
on Wesleyan’s potential liability for tortious interference with the plaintiffs’
business expectancies. See part IV of this opinion. Because the issue has
not been raised, we need not determine whether the trial court’s charge as
to the law of tortious interference also was defective because it failed to
instruct the jury that, as a general matter, to be liable for tortious interference
with business expectancies, a defendant must be an outsider to the business
relationship at issue. That is to say, a person cannot tortiously interfere
with a contractual arrangement, existing or anticipated, to which the person
is a party. See, e.g., Metcoff v. Lebovics, 123 Conn. App. 512, 520, 2 A.3d
942 (2010); see also Bai Haiyan v. Hamden Public Schools, 875 F. Supp.
2d 109, 134 (D. Conn. 2012) (under Connecticut law, ‘‘[t]here can be no
intentional interference with contractual relations by someone who is
directly or indirectly a party to the contract’’ (emphasis added; internal
quotation marks omitted)).
16
We recognize that comment (b) to § 552B suggests that benefit of the
bargain damages might be appropriate if a defendant engaged in fraudulent
conduct. See 3 Restatement (Second), Torts, supra, § 552B, comment (b),
p. 141. For present purposes, we need not determine the applicability or
scope of that exception under Connecticut law because the plaintiffs did
not allege fraud with respect to their negligent misrepresentation claim.
17
We note that it is the usual practice of this court to address challenges
to the sufficiency of the evidence before addressing claims of instructional
error, because the former, if successful, generally will entitle the party
asserting the evidentiary sufficiency challenge to judgment on the merits,
rather than merely a new trial. See, e.g., State v. Padua, 273 Conn. 138,
178–79, 869 A.2d 192 (2005). Under the unique circumstances of the present
case, however, addressing the instructional claims at the outset cuts the
shorter path and does not prejudice the defendants.
18
For the sake of brevity, and because the plaintiffs’ various allegations
largely overlap and cut across their four causes of action, we discuss the
evidence in support of the jury’s verdict in general terms, rather than with
reference to each specific theory of liability. We express no view as to
whether the plaintiffs may prevail at a new trial on their claim for tortious
interference of business expectancies. See footnote 15 of this opinion.
19
Roth testified: ‘‘I was offended to be called a fascist. But it’s perfectly
in their right . . . to call people names . . . as [it] is in our right not to
approve such entities for housing our students.’’
20
Whether these allegations are sufficient to establish detrimental reliance
or ascertainable/pecuniary loss under each of the plaintiffs’ four causes of
action, in the absence of evidence that the plaintiffs compensated their
architect financially or made any other financial outlays, is a very close
question. At the very least, we think that a jury reasonably could have found
that the ascertainable loss element of CUTPA was satisfied. See, e.g., Artie’s
Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218–19, 947 A.2d 320(2008) (‘‘[A]scertainable loss . . . may be proven by establishing, through
a reasonable inference, or otherwise, that the defendant’s unfair trade prac-
tice has caused the plaintiff [injury]. . . . The fact that a plaintiff fails to
prove a particular loss or the extent of the loss does not foreclose the
plaintiff from obtaining injunctive relief and [attorney’s] fees pursuant to
CUTPA if the plaintiff is able to prove by a preponderance of the evidence
that an unfair trade practice has occurred and a reasonable inference can
be drawn by the trier of fact that the unfair trade practice has resulted in
a loss to the plaintiff.’’ (Emphasis omitted; internal quotation marks omit-
ted.)); see also Service Road Corp. v. Quinn, 241 Conn. 630, 641–44, 698
A.2d 258 (1997) (trier of fact reasonably could have inferred that deployment
of video cameras facing entrances to exotic dance clubs would have
adversely impacted clubs’ business so as to satisfy ascertainable loss element
of CUTPA); Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440
A.2d 810 (1981) (‘‘[u]nder CUTPA, there is no need to . . . prove the amount
of the ascertainable loss’’).
21
The defendants’ arguments to the contrary notwithstanding, the plain-
tiffs’ claims are not barred by the statute of frauds, insofar as the plaintiffs’
eligibility to remain in program housing for the 2015–2016 academic year
was a question that could be—and was—definitively resolved in less than
one year following the public and private statements on which the plaintiffs
claim to have relied. See, e.g., C. R. Klewin, Inc. v. Flagship Properties,
Inc., 220 Conn. 569, 578, 600 A.2d 772 (1991).
22
Mass. Ann. Laws ch. 93A, § 2, provides in relevant part: ‘‘(a) Unfair
methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are hereby declared unlawful.
‘‘(b) It is the intent of the legislature that in construing paragraph (a) of
this section . . . the courts will be guided by the interpretations given by
the Federal Trade Commission and the Federal Courts to section 5 (a) (1)
of the Federal Trade Commission Act . . . .’’ (Citation omitted.)
23
Again, all of this assumes, without deciding, that CUTPA even governs
the student housing arrangements of a private university. See footnote 12
of this opinion.