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A.C. Consulting, LLC v. Alexion Pharmaceuticals, Inc.

Appellate Court of Connecticut

November 12, 2019


         Argued September 12, 2019

          Appeal from Superior Court, Judicial District of New Haven, Wahla, J.

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[Copyrighted Material Omitted]

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          Kevin D. Scully, Waterbury, for the appellant (plaintiff).

         Jeffrey R. Babbin, New Haven, with whom were Christine Salmon Wachter and, on the brief, Lawrence Peikes, Stamford, for the appellee (defendant).

         Prescott, Elgo and Sheldon, Js.


         PRESCOTT, J.

         [194 Conn.App. 318] The plaintiff, A.C. Consulting, LLC, appeals from the judgment of the trial court rendered in favor of the defendant, Alexion Pharmaceuticals, Inc., following the granting of the defendant’s motion to strike the plaintiff’s substitute complaint. The substitute complaint contained three counts alleging, respectively, breach of contract, negligent misrepresentation, and breach of the covenant of good faith and fair dealing. On appeal, the plaintiff claims that, in evaluating the legal sufficiency of the allegations in the substitute complaint, the trial court improperly (1) failed both to find [194 Conn.App. 319] an ambiguity in the parties’ contract regarding its operative length and to

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construe that ambiguity against the defendant as the drafter of the contract, (2) concluded that the plaintiff’s allegation that the defendant terminated the contract without giving the plaintiff "sufficient notice under the contract" was legally insufficient to state a claim for breach of contract, and (3) concluded that the allegations that the defendant or the defendant’s agent made assurances regarding the length of the contract were insufficient to plead any of the plaintiff’s causes of action, including negligent misrepresentation.[1] We affirm the judgment of the trial court.

          The following facts, as alleged in the operative complaint, and procedural history are relevant to our resolution of the present appeal. In July, 2011, the plaintiff, through its sole member, James Dolan, entered into a service contract with the defendant, in which the plaintiff agreed to provide the defendant with "administrative support and coordination of security details for heightened risk employee travel." Dolan had acquired expertise and knowledge in the field of security during his lengthy employment with the Connecticut state police. The service contract expired by its terms on December 31, 2012. The operative complaint, however, alleged that the service contract expired on December 31, 2011. The parties subsequently entered into a second service contract with similar terms in March, 2012. That contract expired on December 31, 2012.

         In January, 2013, the parties entered into a third service contract (contract), which is the subject matter of the present action. Prior to executing the contract, the plaintiff, through Dolan, had expressed to the defendant its desire for a longer period of contractual commitment [194 Conn.App. 320] from the defendant. The defendant had assured Dolan that the plaintiff would have the defendant’s security business "so long as he wanted it" and that, at the very least, he had an almost four year commitment from the defendant.[2] (Internal quotation marks omitted.) The contract provided that it was operative through December 31, 2016, a term of approximately four years. The contract further provided, however, that the plaintiff would act as an independent contractor and that the defendant could terminate the contract "upon five (5) days written notice." The defendant’s right to terminate the contract was otherwise unconditional. The contract contained no reciprocal provision that authorized the plaintiff to terminate the contract prior to its expiration. Finally, the contract contained a clause providing that (1) it could not be altered except by a written agreement signed by both parties, (2) it represented the entire agreement of the parties, and (3) it "supersede[d] all previous written and oral negotiations, commitments, and understandings."

          In the summer of 2013, the defendant asked the plaintiff to create a job description for a new position within the defendant’s organization titled "Senior Manager of Global Security." The defendant’s director of global security, Robert Weronik, told Dolan that he should not apply for the position, reassuring Dolan that the plaintiff would have the defendant’s heightened risk employee travel business for as long as the plaintiff wanted it. Weronik, however, knew, or should have known, that the new senior manager would "probably look to terminate the plaintiff."

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          The defendant terminated its contract with the plaintiff on November 17, 2014. The defendant did not cite to any breach of the contract by the plaintiff and failed to give sufficient notice of the termination. Prior to [194 Conn.App. 321] terminating the contract, the defendant had reduced the plaintiff’s hours and responsibilities, and had required Dolan to "report to the [defendant] at least two days a week and prepare detailed reports to the defendant," all of which the plaintiff considered to be unilateral changes to the terms and conditions of the parties’ contract. The plaintiff theorized that, during the course of its business relationship with the defendant, "the defendant gained vast knowledge from the plaintiff on the means and methods of security" and that "[w]hen the defendant had gained sufficient knowledge," it terminated its agreement with the plaintiff.

          On October 13, 2016, the plaintiff commenced the underlying action. The initial complaint consisted of a single count that expressly alleged only a breach of the covenant of good faith and fair dealing. The defendant filed a request to revise, indicating that the complaint contained allegations that could be read as advancing additional theories of recovery, such as breach of contract or wrongful discharge, and asking the plaintiff to set forth each cause of action it intended to pursue in a separate count. The plaintiff objected to the request to revise but ultimately requested leave of the court to file a two count amended complaint. Count one of the amended ...

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