author: ALVORD, J.

text:
    KOVACS CONSTRUCTION CORPORATION v. WATER POLLUTION AND CONTROL AUTHORITY OF THE CITY OF NEW HAVEN
    (AC 30143)
    Flynn, C. J., and Harper and Alvord, Js.

      Argued January 19
    officially released April 27, 2010

      David E. Rosengren, with whom, on the brief, was Daniel J. Klau, for the appellant-appellee (defendant).

      Steven B. Kaplan, for the appellee-appellant (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ALVORD, J.

The defendant, the water pollution and control authority of the city of New Haven, appeals from the judgment, rendered after a court trial, in favor of the plaintiff, Kovacs Construction Corporation. On appeal, the defendant claims that the court improperly awarded the plaintiff a portion of its claimed damages because the court failed to state, and the evidence failed to demonstrate, that the defendant had breached its contractual obligations. The plaintiff cross appeals from the judgment, claiming that the court improperly failed to award the plaintiff (1) the liquidated damages withheld by the defendant, (2) additional costs it incurred for site dewatering and other work it performed after December 2, 2004, and (3) prejudgment interest pursuant to General Statutes § 37-3a. We affirm the judgment of the trial court in part and reverse it in part.

The following facts were found by the court or are not disputed. In August, 2003, the parties entered into a construction contract in which the plaintiff agreed to renovate and upgrade two existing sewer pump stations located at Barnes Avenue and Quinnipiac Avenue in New Haven and to install related sewer piping and manholes at each site. Although the bid specifications for the project specifically required that all dewatering activities were to be performed from inside the excavations at both sites, the plaintiff bid the job on the assumption that the defendant ultimately would permit it to site dewater from outside of the excavation areas. On the basis of this assumption, the plaintiff was able to reduce its total bid price significantly.

Following the competitive bidding process, the plaintiff was awarded the contract as the lowest qualified bidder. The bid signed by the plaintiff and the contract documents all compelled the plaintiff to adhere to the “excavation dewatering” requirement. The parties’ contract further provided that the plaintiff would not be entitled to extensions of time to complete the work or to compensation for any change in work or extra costs unless certain requirements were met and certain procedures were followed. Two months after the contract was executed, Richard T. Kovacs, the plaintiffs chief executive officer, contacted one of the project engineers at Metcalf & Eddy, Inc. (M & E), and informed him that the plaintiff wanted to deviate from the contract by site dewatering the project. A few days later, at the first job meeting on October 8, 2003, the plaintiff agreed to excavation dewatering at both sites as required by the contract.

The Barnes Avenue site is the site at issue in these appeals. Construction at that site began in early 2004 and continued through the spring of that year. Throughout that time period, the plaintiff dewatered the area around the pump station from inside the excavation. Beginning in May, 2004, however, the plaintiff commenced the next phase, which was the installation of the yard piping within the trench area. At that point, by letter dated May 4, 2004, the plaintiff renewed its request to deviate from the contract’s excavation dewa-tering requirement. M & E immediately responded that site dewatering was not allowed by the contract. Nevertheless, a few weeks later, the plaintiff sent M & E a letter from Clarence Welti, the plaintiffs geotechnical engineer, in which he outlined a potential method of site dewatering. At a progress meeting held May 25, 2004, the parties discussed Welti’s recommendations for site dewatering. By correspondence dated June 3, 2004, M & E advised the plaintiff that a request for a change order to deviate from the contract’s excavation dewatering specifications had to be predicated on the discovery of a physical condition at the site that was materially different from the conditions indicated in the contract. Nevertheless, M & E indicated that it would consider granting the request if the plaintiff complied with the four conditions identified in the letter from M & E dated October 6, 2003.

On July 6, 2004, the plaintiff sent a letter to M & E in which it claimed, for the first time, that it had encountered site conditions that were materially different from those represented in the contract documents. Although the plaintiff indicated in that letter that it wanted to implement site dewatering, it did not provide M & E with a proposed method or plan for the proposed site dewatering, nor did it address how it would satisfy the four conditions set forth in the October 6, 2003 letter. On July 22, 2004, the plaintiff submitted a letter to the defendant entitled “Claim and Protest Notification,” in which it indicated that it (1) would continue to work at the Barnes Avenue site “under protest” in accordance with the excavation dewatering requirement of the contract, (2) would file a claim for all additional costs incurred in connection with excavation dewatering and (3) would not accept responsibility for any damage caused by undermining or settlement of existing utilities resulting from the excavation dewater-ing method.

On November 29, 2004, however, the plaintiff unilaterally decided that the contract’s excavation dewatering method was “ ‘unsafe and commercially impracticable’ ” and ordered and installed a site dewatering system without the defendant’s authorization. Beginning December 2, 2004, the plaintiff proceeded to dewater the entire yard piping site from outside the excavation.

As a result of the many difficulties with the project at both sites, some of which were unforeseen, the contract price was increased and the completion date extended on several occasions by approved change orders. A number of the plaintiffs requests for additional compensation, however, were denied, and the defendant did not grant all of the extensions of time requested for the delays in completing the project. The plaintiff substantially completed the project on May 18, 2005, which was 114 days beyond the final extension date. Accordingly, pursuant to § 307 of the contract, the defendant assessed the plaintiff $57,000 in liquidated damages for its failure to complete the work within the stipulated time. In addition, the defendant retained a balance of $9334.61 of the total contract amount as “ ‘unbilled retention.’ ”

On August 4, 2005, more than two months after the project was substantially completed, the plaintiff submitted a claim to the defendant seeking additional compensation for the dewatering problems at the Barnes Avenue site. Subsequently, on November 2, 2005, the plaintiff submitted an additional claim to the defendant for delay related costs it claimed it had incurred during the various extensions of time that had been granted through approved change orders. The plaintiffs requests were denied.

On February 8, 2006, the plaintiff filed the present action against the defendant. The one count complaint alleged that the defendant breached the contract by wrongfully assessing the plaintiff 114 days of liquidated damages and by wrongfully refusing to issue change orders for dewatering at the Barnes Avenue site when the plaintiff encountered subsurface conditions that differed materially from the conditions represented in the contract documents. During a seven day trial in September, 2007, the court heard testimony from several witnesses and admitted dozens of exhibits. Following trial, the parties submitted extensive posttrial briefs summarizing their respective positions.

On October 16, 2008, the court issued its corrected memorandum of decision. In addition to the facts outlined previously in this opinion, the court set forth the following findings of fact and conclusions of law: (1) the contract documents provide that a contractor may not change materials or the manner of construction unless it obtains a written change order, without which any subsequent claim for payment would be deemed invalid; (2) a contractor that claims it is entitled to additional compensation for extra work on the project is required by the contract documents to provide notice of that claim within ten days of the receipt of the challenged instruction or else the contractor is barred from having that claim considered; (3) the plaintiff began to dewater the entire yard piping site at the Barnes Avenue site from outside the excavation on December 2, 2004, even though there were methods available by which it could have dewatered and completed the yard piping at the site in accordance with the contract’s specifications; (4) the plaintiff neither contested the enforceability of the contract’s liquidated damages clause, nor argued that the daily rate of liquidated damages was unreasonable; (5) to preserve a claim that it was entitled to certain requested extensions of time, or to dispute the amount of time that it had agreed to accept in a change order, the plaintiff contractually was required to notify the defendant of such claim within ten days from the date that the claim or dispute arose; (6) the plaintiffs dewatering claim, as alleged in its complaint, is predicated expressly on the alleged discovery of existing subsurface conditions that differed materially from the conditions as represented in the contract documents; (7) the plaintiff failed to provide any proof that the defendant wrongfully refused to issue a change order; (8) the plaintiff failed to meet its obligation to establish that it had encountered materially different subsurface conditions at the Barnes Avenue site and failed to provide the defendant with notice to preserve its claim to any additional dewatering costs until July 22, 2004; (9) the plaintiff was not barred from pursuing its claim for dewatering costs because it preserved that claim through its July 22, 2004 protest letter; (10) although the plaintiff properly preserved its right to recover for reasonable extra dewatering costs while it worked under protest, it was not entitled to recover for any such costs incurred after December 2, 2004, because it breached the contract by implementing the site dewa-tering method; (11) the plaintiff did not prove that the doctrine of commercial impracticability excused its breach of the contract; (12) the plaintiff failed to comply with the contractually provided process for claiming extra costs incurred during approved extensions of time and, therefore, could not recover such costs; (13) the plaintiff was entitled to collect $9334.61, the amount retained by the defendant as “ ‘unbilled retention’ ”; and (14) the plaintiff was not entitled to prejudgment interest on any damages awarded by the court because it failed to establish that the defendant had acted wrongfully.

On the basis of those findings and conclusions, the court awarded the plaintiff $128,314.55 in connection with its dewatering claim and $9334.61 for the unpaid retention, for a total of $137,649.16 in damages. This appeal and cross appeal followed.

I

DEFENDANT’S APPEAL ON DEWATERING CLAIM

The defendant claims that the court improperly awarded the plaintiff $128,314.55, which constituted a portion of the plaintiffs claimed dewatering expenses at the Barnes Avenue site. Specifically, the defendant argues that the court failed to state, and the evidence failed to demonstrate, that the defendant breached the contract, thereby entitling the plaintiff to an award of damages. We agree.

“As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct .... If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn. App. 771, 775, 731 A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 353 n.2, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

The parties’ contract specifically provides that a claim for additional costs would be recognized only under certain enumerated situations and only if the contractor follows the procedures to preserve such a claim. As found by the court, the plaintiff did preserve its claim for dewatering expenses at the Barnes Avenue site when it submitted its protest letter dated July 22, 2004. In that letter, the plaintiff indicated that it was claiming additional compensation pursuant to § 140 of the contract, entitled “Claims for Extra Cost.” The plaintiff did not specify which subsection it was relying on, but in its letter dated July 6, 2004, it stated: “We reiterate that the site conditions are materially different than those presented in the [c]ontract and therefore a change order must be approved before any work may again commence at this job site.” It therefore is apparent that the plaintiff was claiming additional compensation pursuant to subsection (e) of § 140 of the contract. Moreover, no other subsection of § 140 had been mentioned in any of the correspondence from the plaintiff to the defendant or M & E.

This conclusion is further supported by the allegations in the plaintiffs complaint. The relevant paragraphs, paragraphs ten and eleven, alleged that the plaintiff discovered “existing subsurface conditions that differed materially from the conditions represented in the contract documents” and that the defendant “refused to recognize that there were differing site conditions than those represented in the contract documents and refused to issue a change order to the contract that would permit plaintiff to deviate from the contract requirements concerning dewatering.” The court, in its memorandum of decision, stated: “The plaintiffs dewatering claim is set forth in paragraphs nine through fourteen of its complaint and is expressly predicated upon the alleged discovery of existing subsurface conditions that differed materially from the conditions represented in the contract documents.” (Internal quotation marks omitted.)

Accordingly, for the plaintiff to prevail on its dewater-ing claim, it would have had to prove to the court that the conditions at the Barnes Avenue site differed materially from the conditions described in the contract documents. The court does not make that factual finding in its decision. Although the court concluded that the plaintiff had preserved its right to request the additional compensation by filing its July 22, 2004 protest letter, the court never stated that the plaintiff satisfied its burden of proof with respect to materially differing conditions. In fact, the court found to the contrary in its memorandum of decision: “The plaintiff failed to meet its obligation to establish that it had encountered materially different subsurface conditions . . . .” (Internal quotation marks omitted.) Preservation of a claim does not equate to proof of that claim.

It is not possible to infer that the court, by awarding damages, concluded that the plaintiff met its burden of proof on that claim. A thorough review of the transcript reveals no testimony that would permit the factual determination that the plaintiff encountered materially different conditions at the Barnes Avenue site. At trial, Thomas R. Kovacs, the plaintiffs president, acknowledged that he had received soil boring reports with the bid package, that the boring reports indicated running sand at the site and that the actual conditions encountered were no different from the conditions represented in those reports. Richard Kovacs testified that he was involved in the bidding process and had submitted the plaintiffs bid with the intent to utilize the site dewater-ing method rather than the excavation dewatering method specified in the documents. He requested a deviation to permit site dewatering because that was the way he had bid the contract, and for no other reason. Accordingly, we cannot infer that the court concluded that the plaintiff encountered materially different subsurface conditions because there is nothing in the record that would support that finding.

In its posttrial brief, the plaintiff did not argue that it was entitled to additional compensation because of the discovery of materially different subsurface conditions. Instead, the plaintiff claimed that compliance with the excavation dewatering requirement was commercially impracticable, if not impossible. The court concluded that the plaintiff failed to meet its burden of proof on that claim. On appeal, the plaintiff does not argue that it was entitled to additional compensation because of the discovery of materially different subsurface conditions. Instead, it claims that the defendant breached the contract because the excavation dewater-ing requirement was a defective specification, and the defendant unreasonably refused to issue a change order to permit utilization of the site dewatering method. The defendant correctly points out, however, that the trial court found that the plaintiffs dewatering claim, as alleged in its complaint, was predicated expressly on the purported discovery of materially different subsurface conditions at the site. The plaintiff never requested permission to amend its complaint to include allegations of a defective dewatering specification.

We agree with the court’s finding that the plaintiff’s breach of contract claim with respect to dewatering expenses is predicated on the alleged discovery of materially different subsurface conditions. Construction of pleadings is a question of law. Our review of a trial court’s interpretation of the pleadings therefore is plenary. Petitte v. DSL.net, Inc., 102 Conn. App. 363, 374, 925 A.2d 457 (2007). The plaintiffs one count complaint alleges that the defendant wrongfully refused to pay the plaintiff additional redesign costs, wrongfully assessed the plaintiff liquidated damages, wrongfully refused to recognize changed conditions at the Barnes Avenue site and wrongfully refused to issue a change order to permit site dewatering. There are no allegations in the complaint that the excavation dewatering specification was defective.

“Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). It is fundamental in our law that “the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). “The [trial] court is not permitted to decide issues outside of those raised in the pleadings.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005). “Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 361, 812 A.2d 129 (2002).

In the present ease, the plaintiff explicitly alleged that the breach of contract was premised on its discovery of materially different subsurface conditions. The court, therefore, in addressing the plaintiffs claim for additional compensation for dewatering at the Barnes Avenue site, could award damages only if the plaintiff proved that the contract was breached in that manner. The court determined that the plaintiff failed to establish that it had encountered the claimed materially differing conditions. The record supports that determination because the testimony of Richard Kovacs and Thomas Kovacs confirms that the request for site dewatering was not based on newly discovered soil conditions but, rather, that site dewatering had been the plaintiffs intended method of dewatering at the time the bid was submitted. By awarding the plaintiff damages for its dewatering claim, the court improperly granted relief on a theory that was not alleged in the complaint.

On the basis of the foregoing analysis, we conclude that the court’s determination that the plaintiff was entitled to $128,314.55 for additional dewatering expenses does not flow legally or logically from the subordinate facts found. The award was improper because there is no factual basis in the record for a determination that the plaintiff discovered materially different subsurface conditions, which was the premise for the plaintiffs dewatering claim as alleged in its complaint. Consequently, that award cannot stand.

II

PLAINTIFF’S CROSS APPEAL

In its cross appeal, the plaintiff claims that the court improperly failed to award the plaintiff (1) the liquidated damages withheld by the defendant, (2) additional costs it incurred for site dewatering and other work it performed after December 2, 2004, and (3) prejudgment interest pursuant to § 37-3a. We will address the plaintiffs liquidated damages claim and its prejudgment interest claim, limited to the award of $9334.61. Because we have concluded that the court’s award of $128,314.55 for dewatering expenses was improper, it is unnecessary to address the plaintiffs second claim or the court’s denial of prejudgment interest with respect to that amount.

A

Liquidated Damages

The plaintiff claims that the court improperly failed to award it $57,000 held by the defendant as liquidated damages because the defendant failed to submit any evidence at trial that (1) the damage to be expected as a result of late performance was uncertain or difficult to prove and (2) the amount stipulated in the contract was reasonable as to the presumable loss that would be sustained by the defendant as a result of late performance. This claim is without merit.

The parties’ contract contains a provision for liquidated damages. Section 307, entitled “Liquidated Damages for Delay,” provides in relevant part: “The Contractor guarantees that he can and will complete the work within the time limit stated in the Contract Documents or within the extended time limit provided elsewhere in the Documents. Since the damages and [losses] to the City which will result from the failure of the Contractor to complete the work within the stipulated time will be most difficult or impossible to accurately assess, the damages to the City for such delay and failure on the part of the Contractor will be liquidated in the sum of five hundred dollars ($500.00) each calendar day, Sundays and Holidays included, by which the Contractor fads to complete the work o[r] any [p]art thereof, in accordance with the provisions hereof and such liquidated damages will not be considered a penalty. The City will deduct and retain from the moneys due or become due hereunder, the amount of the liquidated damages . . . .” (Emphasis in original.)

The defendant withheld $57,000 in liquidated damages, representing 114 days at $500 per day, for the failure of the plaintiff to complete the project within the time stipulated by the contract. In its complaint, the plaintiff alleged that the defendant wrongfully refused to grant the plaintiff extensions of time for its extra redesign work and dewatering difficulties and, therefore, wrongfully assessed liquidated damages against the plaintiff. The complaint did not allege that the liquidated damages provision in the contract was unenforceable as a penalty.

“A contractual provision for a penalty is one the prime purpose of which is to prevent a breach of the contract by holding over the head of a contracting party the threat of punishment for a breach. ... A provision for liquidated damages, on the other hand, is one the real purpose of which is to fix fair compensation to the injured party for a breach of the contract. In determining whether any particular provision is for liquidated damages or for a penalty, the courts are not controlled by the fact that the phrase liquidated damages or the word penalty is used. Rather, that which is determinative of the question is the intention of the parties to the contract. Accordingly, such a provision is ordinarily to be construed as one for liquidated damages if three conditions are satisfied: (1) The damage which was to be expected as a result of a breach of the contract was uncertain in amount or difficult to prove; (2) there was an intent on the part of the parties to liquidate damages in advance; and (3) the amount stipulated was reasonable in the sense that it was not greatly disproportionate to the amount of the damage which, as the parties looked forward, seemed to be the presumable loss which would be sustained by the contractee in the event of a breach of the contract.” (Internal quotation marks omitted.) American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 306-4307, 869 A.2d 1198 (2005).

In the present case, the plaintiff did not allege that the liquidated damages provision in the contract was invalid and unenforceable as a penalty. It presented no evidence at trial to demonstrate that the amount assessed for each day of delay was unreasonable. Instead, in its posttrial brief, the plaintiff claimed that the defendant was not entitled to enforce the liquidated damages provision in the contract because the defendant failed in its burden to show that the clause was reasonable and enforceable.

“When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007). We conclude that it was not the defendant’s burden to prove that the damages to be expected as a result of late performance were uncertain or difficult to prove or that $500 per day was reasonable as to the presumable loss that would be sustained by the defendant as a result of late performance. That burden would have arisen only in the event of a claim by the plaintiff that the liquidated damages provision was invalid because it was a penalty. The plaintiff did not allege that claim in this case.

“A breaching party seeking to nullify a contract clause that fixes an amount of damages for the breach bears the burden of proving that the agreed upon amount so far exceeds any actual damages as to be in the nature of a penalty.” American Car Rental, Inc. v. Commissioner of Consumer Protection, supra, 273 Conn. 314. Under the circumstances of this case, the liquidated damages clause was entitled to the presumption of validity as a bargained for term in the contract. That presumption was rebuttable, but the plaintiff failed to challenge it. See id., 313-14. Accordingly, the plaintiff failed to meet its burden of proof in support of its claim that it was entitled to the liquidated damages withheld by the defendant.

B

Prejudgment Interest

The plaintiff also claims that the court improperly failed to award it prejudgment interest pursuant to § 37-3a. Specifically, the plaintiff claims that the court, in declining to award the requested interest because it did not find any “ ‘bad faith’ ” on the part of the defendant, employed an improper standard in determining whether the defendant had wrongfully withheld the unpaid retention amount of $9334.61.

In its memorandum of decision, the court correctly set forth the proper standard and considerations for awarding prejudgment interest. Citing to Smithfield Associates, LLC v. Tolland Bank, 86 Conn. App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005), the court noted that such an award is discretionary, that it is subject to equitable considerations and that not all improper detentions of money are wrongful. It found that “the plaintiff has failed to establish that the defendant acted wrongfully.” It then concluded that prejudgment interest was not warranted because it “[did] not find any bad faith on the part of the defendant.”

In Maloney v. PCRE, LLC, 68 Conn. App. 727, 755, 793 A.2d 1118 (2002), the trial court likewise declined to award prejudgment interest on the ground that it had found “no evidence of bad faith or wilfulness” on the part of the defendants. (Internal quotation marks omitted.) We concluded in Maloney, as we do in this case, that the court was well within the exercise of its sound discretion when it declined to award such interest. “A plaintiffs burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful.” Id., 756. The court, therefore, did not abuse its discretion in denying prejudgment interest.

On the defendant’s appeal, the judgment is reversed in part and the case is remanded with direction to vacate the award of $128,314.55 to the plaintiff. On the plaintiffs cross appeal, the judgment is affirmed.

In this opinion the other judges concurred.

       Dewatering is the process by which the level of groundwater at a particular site is lowered to prevent interference with the work at that site. In the present case, the work consisted of excavating portions of the site for the installation of sewer pipes, manholes and wet wells.
      Dewatering from inside the excavation is known as excavation dewater-ing-, dewatering from outside the excavation is known as site dewatering.

       Metcalf & Eddy, Inc., a geotechnical engineering firm that prepared the contract documents, was the defendant’s consulting engineer for the project.

       That request was rejected outright for the Quinnipiac Avenue site. With respect to the Barnes Avenue site, the plaintiff was told that it would have to submit a site dewatering plan that addressed four specific concerns raised by M & E in a letter dated October 6, 2003.

       At trial, Welti testified that all four conditions that M & E requested to be included with the proposed alternative dewatering plan were reasonable.

       The complaint also alleged that the defendant breached the contract by wrongfully refusing to pay the plaintiff additional costs for redesign work it performed at both sites. The court concluded that the plaintiff was not entitled to any damages for redesign costs, and the plaintiff has not challenged that determination on appeal.

       The court’s initial memorandum of decision contained an arithmetic error in the award of damages for the plaintiffs dewatering claim.

       Section 140 of the contract provides: “a. If the Contractor claims that any instruction by Drawings or otherwise involve extra cost or extension of time, it shall, within ten (10) days after the receipt of such instruction, and in any event before proceeding to execute the work, submit its protest thereto in writing to the City, stating clearly and in detail the basis of any objections. No such claims will be considered unless so made.
      “b. Claims for additional compensation for extra work, due to alleged errors in ground elevations, contour lines, or bench marks, will not be recognized unless accompanied by certified survey data, made prior to the time the original ground was disturbed, clearly showing that errors exist which resulted, or would result, in handling more material, or performing more work, than would be reasonably estimated from the Drawings and maps issued.
      “c. Any discrepancies which may be discovered between the actual conditions and those represented by the Drawings and map shall at once be reported to the City and work shall not proceed except at the Contractor’s risk, unless written instructions have been received by the Contractor from the City.
      “d. If, on the basis of the available evidence, the City determines that an adjustment of the Contract Price and/or time is justifiable, the procedure shall then be as provided in Section CHANGES IN THE WORK under GENERAL CONDITIONS.

      “e. During the progress of the work, if the Contractor encounters at the site (1) subsurface or latent physical conditions differing materially from those inherent in the work of the character provided for in this Contract, the Contractor shall promptly and before such conditions are disturbed, notify the Engineer in writing. The Engineer shall thereupon investigate such conditions and if the Engineer finds that they do materially differ, it shall cause such changes to be made in the Specifications and Drawings as may be deemed necessary, and shall make such equitable adjustment in the Contract Price or time as justified, if any, by written order, as provided in the section CHANGES IN THE WORK. No claim of the Contractor for adjustment hereunder shall be allowed unless it has given notice as above required.” (Emphasis in original.)

       Paragraph ten of the complaint alleges: “In October, 2003, upon discovery of existing subsurface conditions that differed materially from, the conditions represented in the contract documents, plaintiff requested that it be permitted to de-water the Barnes and Quinnipiac sites outside of the excavation areas and that the City issue a change order approving this change in the contract requirements. The City wrongfully refused to recognize the changed conditions and rejected plaintiffs request, essentially taking the position that any dewatering outside of the excavation would be conducted at plaintiffs risk.” (Emphasis added; internal quotation marks omitted.)
      Paragraph eleven of the complaint alleges: “Subsequently, plaintiff conducted a further examination of the Barnes site and submitted additional information to the City in May 2004, including the conclusions of Dr. Clarence Welti, a preeminent geotechnical engineer, that de-watering outside of the excavation was necessary in order to proceed with plaintiffs work at the Barnes site. Plaintiff reiterated its request that the City recognize a changed condition, that the contract requirements be changed, and that plaintiff be permitted to dewater outside of the excavation. Once again, the City refused to recognize that there were differing site conditions than those represented in the contract documents, and refused to issue a change order to the contract that would permit plaintiff to deviate from the contract requirements concerning dewatering.” (Emphasis added.)

       After the defendant’s appeal and the plaintiffs cross appeal were filed with this court, the plaintiff filed a motion for articulation pursuant to Practice Book § 66-5. It requested that the trial court further articulate its decision as follows: “That the Court articulate that the damages awarded . . . for the plaintiffs dewatering activities for the pipe excavation at the Barnes [Avenue] site were awarded to the plaintiff as a result of its encountering unanticipated subsurface conditions (e.g., running sand) and that the defendant breached the contract by failing to compensate plaintiff for these costs despite plaintiffs timely requests for such compensation.” The trial court denied the motion for articulation, and the plaintiff then filed with this court a motion for review of the trial court’s decision. We granted the motion for review but denied the relief requested.

       Even if the plaintiff had amended its complaint to include an allegation that the dewatering specification was defective, the plaintiff’s own experts acknowledged at trial that site dewatering was not the exclusive method for completing the job. The court found that the testimony indicated that a contractor could have dewatered and completed the yard piping at the Barnes Avenue site according to the contract specifications.

         The defendant does not contest the court’s award to the plaintiff of $9334.61 in damages for unpaid retention in this appeal.

       The plaintiff also has claimed that the court should have awarded at least a portion of the liquidated damages withheld by the defendant in light of the court’s determination that the plaintiff was entitled to $128,314.55 for additional work in connection with the dewatering activities at the Barnes Avenue site. The plaintiff argues that the additional work would have required additional time to perform, and, therefore, the court should have granted relief for the defendant’s failure to grant the plaintiff time extensions to the contract completion date. Because we have concluded that the award of $128,314.55 was improper, we need not and do not address this claim.

       General Statutes § 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    TIMOTHY THIBODEAU v. AMERICAN BAPTIST CHURCHES OF CONNECTICUT ET AL.
    (AC 30260)
    Bishop, Beach and Hennessy, Js.

      Argued September 24, 2009
    officially released April 27, 2010

      Timothy Thibodeau, pro se, the appellant (plaintiff).

      James F. Sullivan, for the appellee (named defendant).
   Opinion

BEACH, J.

The first amendment to the constitution of the United States and article first, § 3, of the constitution of Connecticut prohibit the state’s involvement in the internal doctrinal matters of religious organizations. The first amendment, however, does not necessarily confer to religious organizations immunity from liability arising from tortious conduct. Though courts may not intervene in or authoritatively decide doctrinal matters, courts necessarily must decide whether, in a given case, abstention is appropriate. Here, the plaintiff, Timothy Thibodeau, appeals from the judgment of the trial court granting the motion to dismiss his complaint for lack of subject matter jurisdiction filed by the defendant American Baptist Churches of Connecticut. The plaintiff claims that the court improperly dismissed his complaint. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged by the plaintiff and reasonably garnered from the record, are relevant to our resolution of his appeal. The plaintiff, an ordained Baptist minister, sought employment through the services of the defendant. The defendant is a regional organization of American Baptist congregations. The defendant does not ordain ministers, but it recognizes ordinations performed by member churches. It also provides placement services for ordained ministers.

The plaintiffs involvement with the defendant began in approximately 1977. From 1977 until 1987, the plaintiff was a member of a Baptist church in Ashford, and in 1988, he became a member of Community Baptist Church of Manchester. In 1982, the plaintiff graduated from college, and in 1989, he graduated from Yale Divinity School with a master of divinity degree. In 1990, the plaintiff was ordained by Community Baptist Church of Manchester, a member affiliate of the defendant. His ordination made him eligible for employment opportunities through the defendant. Apparently, the defendant provided a clearinghouse whereby congregations seeking ministers could obtain information about available ministers. Over time, the defendant became concerned about the plaintiffs fitness for the ministry. It decided to “flag” his profile and decided not to circulate it to congregations seeking ministers.

In May, 2007, the self-represented plaintiff filed a four count, fourth revised complaint, which alleged breach of an implied contract on a theory of promissory estop-pel, defamation, “deceit and fraud” and negligent infliction of emotional distress. The defendant moved to dismiss all counts of the plaintiffs complaint for lack of subject matter jurisdiction. The defendant argued that the first amendment to the United States constitution and article first, § 3, of the Connecticut constitution restrict the government’s power to intrude into ecclesiastical matters and to interfere with a church’s governance of its affairs. The defendant further argued that a court’s consideration of the merits of the plaintiffs allegations, as pleaded, would result in an impermissible entanglement of the court in matters related to the defendant’s doctrines and internal affairs, such as a minister’s qualifications to serve as a minister and to obtain employment as a minister in a religious organization. The court granted the defendant’s motion to dismiss. It reasoned that it was “without jurisdiction to determine whether the plaintiffs ordination as a Baptist minister should be recognized by the [defendant] or to review whether he has been treated fairly by the [defendant] with respect to recognition of his ordination.” This appeal followed.

On appeal, the plaintiff argues that the court improperly granted the defendant’s motion to dismiss for lack of subject matter jurisdiction because his complaint raises only secular issues that do not require a court to interpret religious doctrine or practices. The defendant asserts that in order for a court to consider any of the causes of action alleged in the plaintiffs complaint, it would need to consider competing views of whether the plaintiff was fit to serve as an American Baptist minister, which question necessarily requires an inquiry into the defendant’s internal policies, religious doctrine and procedures.

We first set forth our standard of review. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Citation omitted; internal quotation marks omitted.) Bagg v. Thompson, 114 Conn. App. 30, 37-38, 968 A.2d 468 (2009). “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

I

The first amendment to the United States constitution, applicable to the states through the fourteenth amendment to the United States constitution; see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); provides in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const., amend. I. A brief overview of the religion clauses of the first amendment as they are applicable to the present case may be helpful. “The first amendment to the United States constitution protects religious institutions from governmental interference with their free exercise of religion.” Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn. App. 646, 648, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S. Ct. 206, 169 L. Ed. 2d 144 (2007).

“[T]he first amendment has been interpreted broadly to severely [circumscribe] the role that civil courts may play in resolving . . . disputes concerning issues of religious doctrine and practice.” (Internal quotation marks omitted.) DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn. App. 865, 875-76, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003). “Under both the free exercise clause and the establishment clause, the first amendment prohibits civil courts from resolving disputed issues of religious doctrine and practice.” Id., 880. By contrast, exercise of governmental authority is permissible if it (1) has a secular purpose, (2) neither inhibits nor advances religion as its primary effect and (3) does not create excessive entanglement between church and state. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). “Under ‘excessive entanglement’ analysis, civil tort claims requiring courts to review and to interpret religious doctrine and practices are barred by the first amendment.” DeCorso v. Watchtower Bible & Tract Society of New York, Inc., supra, 877; see also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 721-23, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976) (holding that first amendment barred judicial consideration of bishop’s wrongful discharge claim).

Freedom of religion is guaranteed not only to individuals but also to churches, and church organizations, which have “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 97 L. Ed. 120 (1952). In the nineteenth century, the United States Supreme Court enunciated principles limiting the role of civil courts in resolving religious controversies. In 1871, prior to “judicial recognition of the coercive power of the [f]ourteenth [a]mendment to protect the limitations of the [f]irst [ajmendment against state action;” id., 115; the Supreme Court in Watson v. Jones, 80 U.S. (13 Wall.) 679, 727, 20 L. Ed. 666 (1871), held that “the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” At least since then, the Supreme Court consistently has held that civil courts are prohibited by the first amendment from adjudicating disputes turning on church policy and administration or on religious doctrine and practice. See Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. 708-709; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 446-47, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Kedroff v. St. Nicholas Cathedral, supra, 114-16; Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16, 50 S. Ct. 5, 74 L. Ed. 131 (1929). In short, “[as a] general rule . . . religious controversies are not the proper subject of civil court inquiry, and ... a civil court must accept the ecclesiastical decisions of church tribunals as it finds them.” Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 713.

The constitution, however, does not immunize every church action from juridical review. “[N]ot every civil court decision . . . jeopardizes values protected by the [f]irst [a]mendment.” Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. 449. “[C]hurches, their congregations and hierarchy exist and function within the civil community. . . [and] it is acknowledged that they are as amenable as other societal entities to rules governing property rights, torts and criminal conduct.” Higgins v. Maher, 210 Cal. App. 3d 1168, 1170, 258 Cal. Rptr. 757, review denied, 1989 Cal. LEXIS 4082 (August 10, 1989), cert. denied, 493 U.S. 1080, 110 S. Ct. 1135, 107 L. Ed. 2d 1040 (1990), citing Watson v. Jones, supra, 80 U.S. 732-33. If a court can resolve the dispute by applying only neutral principles of law, however, judicial review may be permissible. See Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979) (applying neutral principles of law analysis to church property dispute); New York Annual Conference v. Fisher, 182 Conn. 272, 281, 438 A.2d 62 (1980) (“[i]t is now well established that state judicial intervention is justified when it can be accomplished by resort to neutral principles of law . . . that eschew consideration of doctrinal matters such as the ritual and liturgy of worship or the tenets of faith”); see also D. Wiesen, “Following the Lead of Defamation: A Definitional Balancing Approach to Religious Torts,” 105 Yale L.J. 291 (1995).

Coruts have considered it constitutionally appropriate to resolve cases using neutral principles of law so long as they do not implicate or are not informed by religious doctrine or practice. Courts have properly resolved property disputes; see, e.g., Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. 449; so long as the disputes may be resolved by the application of ordinary principles of property law and without resort to ecclesiastical matters. See Jones v. Wolf, supra, 443 U.S. 595; Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970). Similarly, contractual matters, including employment disputes, may be resolved by the secular judicial system in other than religious contexts. Thus, ordinary business contracts may be litigated civilly, as may employment disputes with secular employees. E.g., Watson v. Jones, supra, 80 U.S. 679; Equal Employment Opportunity Commission v. Pacific Press Publishing Assn., 676 F.2d 1272 (9th Cir. 1982); see generally Heard v. Johnson, 810 A.2d 871, 879-81 (D.C. 2002). But the exception in cases where neutral principles of law may apply ought not swallow the first amendment rule: where conduct is prima facie protected by the first amendment, a party seeking secular court jurisdiction bears a burden to show that the controversy in issue is outside the constitutional bar. See Bible Way Church of Our Lord Jesus Christ of the Apostolic Faith v. Beards, 680 A.2d 419, 430 (D.C. 1996), cert. denied, 520 U.S. 1155, 117 S. Ct. 1335, 137 L. Ed. 2d 494 (1997); see also Heard v. Johnson, supra, 881-82.

II

In this case, each claim in the plaintiffs complaint arises out of his relationship with the defendant, a religious organization. The gravamen of each of the plaintiffs claims is that the defendant did not assist him in obtaining employment as an ordained minister but rather harmed him by withdrawing its recognition of his ordination. The central question presented is whether the disputes require the court to interpret and to apply religious doctrine and practices or whether the dispute is simply a controversy that involves church officials but to which neutral principles of secular law can be applied without need to inquire into ecclesiastical matters. On a reading of the complaint, it is apparent that the plaintiffs claims arise primarily from the defendant’s decision to withdraw its recognition of the plaintiffs ordination and to refuse to circulate his resume to churches. We will examine each claim in turn.

A

In his promissoiy estoppel count, the plaintiff appears to allege that the defendant made statements to him concerning the steps he needed to take in order to become eligible for employment opportunities provided by the defendant. In reliance on the defendant’s statements, the plaintiff changed his position by obtaining a bachelor’s degree and a master of divinity degree, and by fulfilling various other preemployment requirements such as becoming ordained and serving as an intern at an American Baptist church. The plaintiff contends that he was qualified for employment opportunities and that the defendant should have circulated his resume to churches. He alleges that the defendant “blacklisted” him from employment opportunities because of “criticisms against his character, appearance, style, and theological perceptions.” He alleges that he remained underemployed or unemployed in secular employment because, inter alia, he was not qualified for employment other than that for which he had been specially trained.

“Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. . . . This court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor .... Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. [1 Restatement (Second), Contracts § 90, p. 242 (1981).] A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.” (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-105, 837 A.2d 736 (2003).

Actions based on contract law centering on employment disputes between clergy and religious institutions can be litigated in civil courts only if neutral principles of law can be applied without entanglement with religious considerations. A church may make enforceable promises. See, e.g., Watson v. Jones, supra, 80 U.S. 714. Courts, however, may not inquire into matters whose enforcement would require “a searching and therefore impermissible inquiry” into church doctrine. Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. 723.

In this case, the plaintiffs claim centers around a dispute involving the defendant’s selection of candidates whom it will assist in obtaining ecclesiastical employment. The plaintiff contends that he satisfied the requirements set forth by the defendant and therefore was qualified to have the defendant assist him in obtaining ecclesiastical employment. He contends, however, that the defendant “blacklisted” him based on, inter alia, his theological perceptions. Resolution of this claim would involve an impermissible inquiry into the defendant’s internal procedures and its judgment regarding the qualifications of clergy, as well as the plaintiffs objective qualifications for employment opportunities through the defendant. The reasonableness of alleged promises and reliance thereon cannot be decided without inquiry into such matters. The first amendment precludes governmental interference with the selection of clergy. Kedroff v. St. Nicholas Cathedral, supra, 344 U.S. 116; see also Gonzalez v. Roman Catholic Archbishop, supra, 280 U.S. 16 (“[decisions of church authorities concerning] what the essential qualifications of [clergy] are and whether the candidate possesses them . . . although affecting civil rights, are accepted in litigation before the secular courts as conclusive”).

B

In the defamation count, the plaintiff alleges that the defendant, through its executive minister and other officials, published letters within the church community that contained various false statements, including statements that the deaconate of Community Baptist Church of Manchester recommended that the plaintiffs ordination be postponed, that the plaintiff was no longer engaging in the fellowship and ministry of the church but rather was pursuing solo street ministry, and that the plaintiffs profile should not be circulated to churches affiliated with the defendant. These statements, the plaintiff contends, “blacklisted him from potential employment opportunities with any churches associated with [the defendant].”

“To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.” Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). Truth is a defense to defamation. Id., 228-29.

The plaintiffs defamation count, as previously noted, concerns letters published by members of the defendant within the church community containing allegedly false statements about the plaintiff with respect to his fitness for ministry. This claim arises out of the defendant’s relationship with the plaintiff, and its resolution would require an impermissible inquiry into the defendant’s bases for its action and its ground for evaluating ministers. See Heard v. Johnson, supra, 810 A.2d 871 (pastor’s defamation claim arising out of employment dispute with church dismissed) and cases cited therein; see also Stepek v. Doe, 392 Ill. App. 3d 739, 910 N.E.2d 655 (court precluded on first amendment grounds from exercising jurisdiction over matter concerning allegedly defamatory statements published exclusively within context of church’s disciplinary proceedings), appeal denied, 233 Ill. 2d 600, 919 N.E.2d 366 (2009).

An examination of Stepek and Heard may be useful because these cases illustrate considerations pertinent to the present case. In Stepek, the plaintiff priest brought a defamation action against two men who had stated in the course of disciplinary proceedings within the hierarchy of the Roman Catholic Church that the plaintiff had sexually abused them. Seeking contribution and indemnity, the two defendants impleaded the Roman Catholic bishop of Chicago. The bishop sought to dismiss the action on the ground that the court lacked subject matter jurisdiction. According to the bishop, the action was foreclosed by application of the doctrine of “ ‘ecclesiastical abstention’ or ‘church autonomy’.” Id., 746. The bishop argued that the church had the right under the free exercise clause of the first amendment to govern its own clergy without interference from secular courts. Id.

The Illinois Appellate Court agreed with the bishop. After citing voluminous authority for the proposition that civil courts must accept as conclusive the decisions of ecclesiastical tribunals, the court distinguished suits against priests and church organizations alleging sexual abuse. Those cases allowed inquiry in Illinois, because those issues could be decided without considering church doctriné. Id., 748. The court examined several other cases in which defamation had been alleged by clergy. In one such case, Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505, 773 N.E.2d 929 (2002), an Episcopal priest had been accused by a parishioner of an improper sexual relationship, and the priest alleged that the accusation was false. Because the allegedly defamatory material was published solely in the context of an internal disciplinary proceeding, it had absolute first amendment protection. The Stepek court also examined Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 808 N.E.2d 301 (2004), in which the plaintiff minister was suspended by church authorities. The Callahan court concluded that the plaintiff minister’s defamation claims against the church and its officers could not be pursued in the civil forum “to the extent that they arose from the ecclesiastical complaint, investigation, and church committee decision regarding Callahan.” Stepek v. Doe, supra, 392 Ill. App. 3d. 751, citing Callahan v. First Congregational Church of Haverhill, supra, 715-16. The Stepek court noted that “[t]he free exercise clause of the first amendment prohibited the trial court from exercising subject matter jurisdiction over Callahan’s claims for discrimination, breach of contract, tortious interference, intentional infliction of emotional distress and violation of right to privacy where the court could not have inquired into the reasons for the church’s decisions regarding Callahan’s ministry without intruding into matters of internal management of the church.” Stepek v. Doe, supra, 750-51. After reviewing case law, the Stepek court concluded that it did not have subject matter jurisdiction over the dispute before it even if the defamation action could be determined by the application of neutral principles of law because the determination would intrude on internal religious affairs of the church. Id., 754-56.

Heard v. Johnson, supra, 810 A.2d 871, is similar in many ways to this dispute. In Heard, a Baptist congregation terminated the services of the plaintiff minister. The minister then brought an action against trustees representing the congregation. The action alleged defamation, invasion of privacy, breach of employment contract, intentional infliction of emotional distress and negligent infliction of emotional distress. The trial court dismissed the action as to the breach of contract and negligent infliction of emotional distress claims but declined to dismiss—or, in the alternative, to grant the trustees’ summary judgment motion as to—the remaining claims. The trustees appealed. Id., 875-76.

The District of Columbia Court of Appeals discussed the rubric of first amendment abstention, including the proposition that secular courts may decide issues amenable to resolution by application of neutral principles of law, at least where property disputes and secular employment and business contracts are at issue; the court noted that the “ ‘fraud, collusion or arbitrariness’ ” exception enunciated as dictum in Gonzalez v. Roman Catholic Archbishop, supra, 280 U.S. 16, had been narrowed almost beyond recognition by the later case of Serbian Eastern Orthodox Diocese v. Milivojev-ich, supra, 426 U.S. 696. Heard v. Johnson, supra, 810 A.2d 881-82. Citing, inter alia, Serbian Eastern Orthodox Diocese, the court stated that the first amendment generally prohibits “judicial encroachment into church decisions where those decisions turn on church policy or on religious doctrine or practice. Except for contractual disputes, this prohibition includes church decisions concerning the employment of ministers because selection and termination of clergy is a core matter of ecclesiastical self-governance not subject to interference by a state.” Heard v. Johnson, supra, 882.

The Heard court allowed that not all church activities are protected from judicial inquiry: where “important state interests” are at stake, a “ ‘delicate balancing’ ” is required. Id., 883. Citing Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the court stated that only those state interests that are “ ‘of the highest order’,” however, can outweigh legitimate claims to free exercise of religion. Heard v. Johnson, supra, 810 A.2d 883. Most civil rights and common-law claims are not sufficient to overcome first amendment protection. “Under most circumstances, defamation is one of those common law claims that is not compelling enough to overcome [f]irst [ajmendment protection surrounding a church’s choice of pastoral leader.” Id. Two points are important: in most of the cases the Heard court analyzed, the conflicts were confined to the churches involved, and, critically, the defamation claims typically could not be considered in isolation from the decisions to terminate employment. “ ‘Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church.’ Downs [v. Roman Catholic Archbishop of Baltimore, 111 Md. App. 616, 624, 683 A.2d 808 (1996)]. Examining such controversies is precisely the kind of inquiry that is forbidden to civil courts since ‘[w]hose voice speaks for the church is per se a religious matter.’ Minker [v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1357 (D.C. Cir. 1990)].” Heard v. Johnson, supra, 884.

The Heard court concluded that the defamation claim was barred by the first amendment because the claim arose from an employment dispute that could not be resolved in isolation from the employment decision as to the pastor, the publication was internal and there were no egregious circumstances. Because the narrow tort claims in issue could not practically be considered in isolation from the entire context, and the context was ordinarily forbidden territory for civil courts, the court directed that the complaint be dismissed in its entirety. Id., 885-87. After carefully analyzing the law and the complaint in the context of defamation at some length, the Heard court concluded in a footnote that “three of [the plaintiffs] claims remain, but only as alternative theories of liability. Any argument for or against allowing the defamation claim [to remain] would apply equally well to invasion of privacy . . . or intentional infliction of emotional distress since all three are nonphysical intentional torts. For the sake of convenience and simplicity, we will discuss only defamation in this context. The result we reach as to the defamation claim, however, will dispose of the alternate theories of liability as well.” Id., 880 n.5.

We are persuaded that the considerations of the previously discussed cases are pertinent to the disposition of the defamation claim in this case. Simply put, the gravamen of the dispute is the decision of the defendant, a religious organization, not to recommend the plaintiff for a position in the ministry. The defamation claim cannot be entertained in isolation from the dispute over fitness for the clergy, and there is no overwhelming counterbalancing consideration. The defamation claim was appropriately dismissed.

C

In his complaint, the plaintiff also alleges “deceit and fraud.” This count of the complaint incorporates by reference the facts alleged in the preceding counts. In this count, the plaintiff also alleges that the defendant “concealed and misrepresented facts, which were known to the [defendant], with the intent to mislead the plaintiff and prospective employers of the plaintiff, whose reliance upon the facts led to the plaintiffs detriment.” The plaintiff further alleges, inter alia, that “[t]he [defendant] committed fraud in that [it] wantonly and [wilfully] made false representations with the intent to injure and deprive the plaintiff of employment opportunities to his detriment, and with the intent to induce the churches nationally to act to the detriment of the [plaintiff] in one or more of the following ways: (a) [p]revent his resume from circulation; (b) [p]revent interviews with potential employers.”

We have examined the complaint at length. It is somewhat unclear from the complaint precisely what cause of action the plaintiff is alleging. Any lack of clarity regarding this count notwithstanding, at the center of this count, however, is the plaintiffs claim that he was harmed by the defendant’s failure to circulate his resume and failure to assist him in procuring interviews for pastorate positions at churches affiliated with the defendant. “Generally, courts will not interfere in canonical or ecclesiastical controversies regarding clergymen’s employment at a church. The selection or assignment of clergy, and the removal, termination, or suspension of a pastor or clergy member are generally ecclesiastical matters with which civil courts cannot interfere.” 77 C.J.S. 112, Religious Societies § 128 (2006). The defendant’s decision not to circulate the plaintiffs resume or assist the plaintiff in procuring employment is an ecclesiastical decision over which we do not have jurisdiction. See Kedroff v. St. Nicholas Cathedral, supra, 344 U.S. 116 (right to choose ministers without government restriction).

D

The claim of negligent infliction of emotional distress concerns allegations that the defendant caused the plaintiff distress by informing his wife that he would not preach in an American Baptist church because he was affiliated with a cult, by hiring a detective to follow the plaintiff during worship services in the sanctuary and after worship services, by sending a letter to members of the defendant, advising them not to approach the plaintiff and by having a police officer deliver a letter to the plaintiffs home.

“[I]n order to state ... a claim [for negligent infliction of emotional distress], the plaintiff has the burden of pleading that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997).

The claims alleging infliction of emotional distress are governed, as noted in part IIB of this opinion, by the same considerations as those governing the defamation claim. If the claims cannot be resolved without reference to constitutionally protected activity, if the underlying factual circumstances are not especially egregious, if they do not involve public safety, peace or order, and, in short, if no strong state interest outweighs the constitutional value of free exercise of religion, then a civil court may not entertain the claim. Because each of the claims alleging emotional distress cannot be fully resolved without a consideration of the underlying dispute as to fitness and are merely ancillary to the underlying claim, we affirm the court’s order dismissing the count.

To determine whether the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress, a court necessarily would review the history and context of and motivations for the defendant’s actions. A threshold inquiiy is whether the resolution of a claim will project the fact finder into what the Supreme Court, in Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. 719, aptly called a “religious thicket . . . .” Resolution of the allegation concerning the defendant’s informing the plaintiffs wife that the plaintiff would not preach in an American Baptist church because he was affiliated with a cult would delve into the defendant’s decision not to assist the plaintiff with employment opportunities, which, at least in this allegation, was allegedly due to the plaintiffs involvement in a cult. The determination of whether informing a church member that another is involved in a cult would cause an unreasonable risk of causing emotional distress would place a court in a position of deciding what a cult is and what its implications are regarding fitness for the ministry. Such a determination would lead a court into a religious thicket. The plaintiffs remaining allegations in his negligent infliction of emotional distress claim present a somewhat closer question. These allegations include hiring a detective to follow the plaintiff during worship services in the sanctuary and after worship services, sending a letter to members of the defendant not to approach the plaintiff and having a police officer deliver a letter to the plaintiffs home. These allegations focus on the conduct of the defendant prior to reaching its decision regarding the plaintiffs ordination and employment opportunities. The harm the plaintiff claims he suffered as a result of the defendant’s conduct is a consequence of the steps taken by the defendant to investigate the employment related dispute between the parties, which dispute is at the center of the plaintiffs complaint. The free exercise clause bars court involvement in the employment relationship between a minister and a church. See, e.g., Gonzalez v. Roman Catholic Archbishop, supra, 280 U.S. 16 (“it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them”); see also Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. 717 (“questions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern”); DeCorso v. Watchtower Bible & Tract Society of New York, Inc., supra, 78 Conn. App. 879.

In the context of this case, the plaintiffs claims are simply too closely related to the ecclesiastical functions of the church and the religious aspects of the plaintiffs relationship with the defendant to be treated as simple civil wrongs able to be addressed solely by neutral secular principles of law without consideration of areas protected from inquiry by the first amendment. His claims are related to issues of church procedure and, as such, adjudication of his claims would require inquiry into the defendant’s methods of investigating fitness for the ministry, its reasons for declining to recognize the plaintiffs ordination and its failure to assist him in obtaining employment with churches affiliated with the defendant. “[I]t is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria.” Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. 714-15. The plaintiffs claims are sufficiently intertwined with church polity so that resolution by the courts constitutes a threat of entanglement with religious doctrine or practice. Courts generally refrain from considering claims that require “a searching and therefore impermissible . inquiry” into church governance. Id., 723. Given this context, it is difficult to see how an inquiry into the policy and procedure of the defendant could be avoided. Even if the plaintiffs claim of negligent infliction of emotional distress could be determined by the application of neutral principles of law, such a determination would intrude on the religious affairs of the church and therefore be barred by the first amendment. See, e.g., Stepek v. Doe, supra, 392 Ill. App. 3d 754-56. Additionally, there are no state interests involved here that axe compelling enough to overcome first amendment protection surrounding the employment relationship between a minister and a church. See, e.g., Heard v. Johnson, supra, 810 A.2d 882.

Even though the plaintiffs negligent infliction of emotional distress claim concerns the defendant’s selection of which clergy members it will assist in obtaining employment, and thus involves an ecclesiastical decision, “[it] is not totally free from legislative restrictions.” (Internal quotation marks omitted.) Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). State restriction is permitted when the religious activity “pose[s] some substantial threat to public safety, peace or order.” Id. “For example, a church could not select its ministers on the basis of their demonstrated willingness to commit a crime, or by forcing the candidates to play a game of Russian roulette and hiring whoever survived.” Heard v. Johnson, supra, 810 A.2d 883. The trial court did not rely on such exception, and the exception does not appear to apply in this case. The defendant’s alleged actions of having someone follow and observe the plaintiff in the sanctuary, instructing church members not to approach the plaintiff and having a letter delivered to the plaintiffs home by a state officer are not acts that pose a substantial threat to public safety, peace or order.

Ill

In sum, this case implicates the ability of the defendant to operate within its own sphere, according to its own methods, and without judicial interference as to its employment recommendations for one of its ministers. The conduct complained of occurred in the context of, or was germane to, a dispute over the plaintiffs fitness or suitability for his ordination to continue to be recognized and whether his resume should be circulated to churches associated with the defendant. If a court were to decide the issues raised in his complaint, it would necessarily inquire into the defendant’s decisions regarding its internal management and decisions as to whether a person is suited for the clergy. If a reviewing court did not agree with the procedure used and the effects therefrom in holding the defendant liable, the court would be imposing secular law and disciplinary action on church practice and procedure. “If members of religious organizations could freely pursue their doctrinal grievances in civil courts, or legislatures could pass laws to inhibit or enhance religious activities, ecclesiastical liberty would be subjected to governmental interference and the unmolested and unobstructed development of opinion and belief which the [f]irst [ajmendment shield was designed to foster could be secularly undermined.” (Internal quotation marks omitted.) Guinn v. Church of Christ, 775 P.2d 766, 772 (Okla. 1989). The right to choose ministers without government restriction underlies the well-being of the religious community. See Kedroff v. St. Nicholas Cathedral, supra, 344 U.S. 116.

The judgment is affirmed.

In this opinion the other judges concurred.

       The language of article first, § 3, of the constitution of Connecticut may be instructive. That section states: “The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.” Conn. Const., art. I, § 3.

       Initially, the action also was brought against American Baptist Churches, USA, but the action was later withdrawn with respect to that defendant. We refer in this opinion to American Baptist Churches of Connecticut as the defendant.

       Although the plaintiff asserts a violation of our state constitution, he has provided no independent state constitutional analysis. We thus limit our review to the plaintiffs federal constitutional claim.

       Although both parties submitted documents to the court for its consideration of the motion to dismiss, the few facts found by the court appear to be based primarily on the allegations of the complaint.

       “Because no Connecticut appellate court has determined the extent to which the first amendment provides protection to religious entities and officials from [contract and] tort liability on facts similar to those involved in this case, we examine the opinions of the United States Supreme Court and courts of other jurisdictions that have considered similar issues for our resolution of this case.” DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn. App. 865, 876, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).

       Although the Supreme Court in Watson v. Jones, supra, 80 U.S. 679, proscribed judicial review of purely ecclesiastical decisions, in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 447, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969), the court discussed the possibility of “marginal civil court review” of such disputes. Prior to that, in Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16, 50 S. Ct. 5, 74 L. Ed. 131 (1929), the court stated: “In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.”
      Later, in Serbian Eastern Orthodox Diocese v. Milivojevich, supra, 426 U.S. 712-13, the court announced that the fraud, collusion or arbitrariness exception was dictum only and that “whether or not there is room for ‘marginal civil court review’ under the narrow rubrics of ‘fraud’ or ‘collusion’ when church tribunals act in bad faith for secular purposes, no ‘arbitrariness’ exception—in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations—is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of a hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.”

       The plaintiff argues, essentially, that because he was not employed by the defendant, his claims do not implicate the defendant’s right to autonomy in making decisions regarding its affairs, including matters of faith, doctrine and internal governance. The plaintiff cannot prevail on this argument. The plaintiff is seeking employment opportunities as a minister through the defendant. To the extent that the resolution of the plaintiffs claims would require the finder of fact to inquire into matters of church doctrine and governance, his claims are barred by the first amendment.

       The plaintiff entitled this count “breach of a promissory estoppel of an implied contract.” “The difference between a contract claim and a promissory estoppel claim is merely that in one instance a court enforces a promise because it was part of a bargain, and in the other a court enforces a promise because it induced unbargained-for reliance.” (Internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 201 n.10, 972 A.2d 666 (2009). This count does not appear to be based on breach of an implied in fact contract, which is the same as an express contract except that assent is implied from the conduct of the parties, or an implied in law contract, which is not a contract but another name for unjust enrichment. See Vertex, Inc. v. Waterbury, 278 Conn. 557, 573-74, 898 A.2d 178 (2006). Rather, this count appears to be based on promissory estoppel. See Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985) (interpretation of pleadings question of law).

       If ecclesiastical decisions regarding qualification of clergy are conclusive on civil courts; see part II A of this opinion; and therefore deemed to be true, then a defamation claim brought against a religious organization regarding qualifications for the ministry would appear to be untenable in any event.

       The United States Supreme Court has recognized an exception: state interference is allowed when the activity “pose[s] some substantial threat to public safety, peace or order.” Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963).

       In the defamation context, internal publication was a consideration. In this claim of infliction of emotional distress, the alleged emotional distress was inflicted on the plaintiff himself.