The present case arises out of the actions of the defendant city of West Haven and the defendant West Haven redevelopment agency in connection with redevelopment in the Savin Rock area of West Haven.
In 1966, the West Haven city council approved a redevelopment plan previously adopted by the West Haven redevelopment agency. In 1977, the plaintiffs, Arsen Lazaros and Emanuel Sainis, purchased a parcel of land (parcel L) in the redevelopment area. In 1978, desiring to modify the original plan, the defendants solicited the consent of the plaintiffs and, in consideration of giving their consent the plaintiffs, in 1979, were given an opportunity to purchase another parcel of land (parcel M) to develop "for commercial, recreation and apartment purposes." The plaintiffs' plans for development were approved by the West Haven redevelopment agency but disapproved by the West Haven city council, thus giving rise to this litigation which was returnable to the Superior Court for the judicial district of New Haven on January 17, 1989. The present case, which was claimed for trial by jury, is complex and involves a broad spectrum of issues and prayers for relief. *Page 13
Prior to and during the course of jury selection, the court spent a great deal of time conferring with counsel in an effort to isolate critical legal issues with the objective of resolving them prior to the commencement of the trial itself and, thereby, simplifying the trial and shortening its length.
Counsel and the court agreed that the appropriate procedural vehicle to accomplish this objective was a motion to strike directed to various allegations in the amended complaint dated July 26, 1994, the substance of which has remained unchanged from the outset. Thus, the defendants filed several motions to strike addressed to various legal issues hereinafter set forth.
A motion to strike, like the demurrer of old, tests the legal sufficiency of a pleading. Practice Book § 152; Gordon v. BridgeportHousing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). It admits facts only, not legal conclusions or the truth or accuracy of opinions stated in the pleading. Maloney v. Conroy, 208 Conn. 392, 394,545 A.2d 1059 (1988); McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965); Greene v. Metals Selling Corp. , 3 Conn. App. 40, 42, 484 A.2d 478 (1984).
Paragraph thirty-two of the amended complaint alleges that the denial of approval of these plans by the city council was unreasonable, dishonest, in bad faith and constituted a breach of contract.
Upon reflection, the court concludes that the allegations that the denial of the approval of the plaintiffs' plans by the city council was unreasonable, dishonest, *Page 15 in bad faith and unsupported by the allegation of subordinate facts, are conclusions not admitted by the motion to strike, and, therefore, are not an element in the present case. McAdam v. Sheldon, supra, 153 Conn. 282-83.
The claim with respect to a breach of an agreement by the defendants to sell parcel M to the plaintiffs fails because there was no breach of this agreement. The modification agreement clearly and specifically provided that final design plans had to be submitted to the city council for approval or rejection and that the land disposition agreement would be signed thirty days after approval of final plans by the city council. The requirement of approval by the city council is an integral part of the modification agreement and cannot be ignored. Albert Mendel Son,Inc. v. Krogh, 4 Conn. App. 117, 123, 492 A.2d 536 (1985).
Where the contract terms are clear, the contract should be given effect according to its terms. Leonard Concrete Pipe Co. v. C. W. Blakeslee Sons, Inc., 178 Conn. 594, 599, 424 A.2d 277 (1979).
In interpreting a contract, a court cannot import or add new or different terms. Hatcho Corp. v. Della Pietra, 195 Conn. 18, 19,485 A.2d 1285 (1985); Cirrito v. Turner Construction Co., 189 Conn. 701,706-707, 458 A.2d 678 (1983). Concerning the intention of the parties, the applicable rule is that it "is not what intention existed in the minds of the parties but what intention is expressed in the language used. . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract and not from one party's subjective perception of the terms." (Citation omitted.) Reese v. First ConnecticutSmall Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980).
As noted previously, the modification agreement expressly indicated that final design plans were subject *Page 16 to approval or rejection by the city council and this rejection of the plans did not constitute a breach of the alleged agreement to sell parcel M to the plaintiffs.
The court notes the close relationship between a redevelopment agency and a municipality's legislative body as reflected in chapter 130 of the General Statutes. West Haven Sound Development Corp. v. West Haven,201 Conn. 305, 310, 514 A.2d 734 (1986).
Concerning the action by the city council in rejecting the plaintiffs' plans, no facts are alleged that warrant a judicial review of its decision.
The rule for judicial review of municipal legislative decisions is found in McAdam v. Sheldon, supra, 153 Conn. 281, which follows the seminal case of Whitney v. New Haven, 58 Conn. 450, 20 A. 666 (1890). "When municipal authorities are acting within the limits of the formal powers conferred upon them and in due form of law, the right of courts to supervise, review or restrain them is necessarily exceedingly limited. In part, this stems from the constitutional separation of the legislative, executive and judicial functions and powers. See cases such as Malmo'sAppeal, 72 Conn. 1, 4, 43 A. 485 [1899]. And where, as here, the municipal authorities act in accordance with formal requirements, courts will interfere only `where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize' the action taken. Whitney v. New Haven, supra. Mere differences in opinion among municipal officers or members of the municipal electorate are never a sufficient ground for judicial interference. Whitney v. New Haven, supra. This seems to be the general rule. 62 C.J.S., Municipal Corporations, §§ 199, 201; 13 McQuillin, Municipal Corporations (3d Ed.) §§ 37.03, 37.26; 18 id. (3d Ed.Rev.) § 52.21. Even without consideration of constitutional infirmities, any broader rule would potentially involve the courts in the review and *Page 17 revision of many, if not all, major controversial decisions of the legislative or executive authorities of a municipality." McAdams v.Sheldon, supra.
The plaintiffs claim that under the modification agreement, they received an option to purchase parcel L and, therefore, are entitled to the remedy of specific performance. An analysis of the language in the disposition and time table sections of the agreement does not support this claim. Rather, the plaintiffs first received a right to negotiate a plan with the redevelopment agency and the city of West Haven retained the right to reject such plan. Under the language of the agreement, the plaintiffs could not be compelled to negotiate with the redevelopment agency nor was the city compelled to approve the plaintiffs' plan for redevelopment. The plaintiffs' rights, however characterized, were subject to the city's right to reject the plan. Only after approval of the plan by the city council does language in the agreement concerning execution by the municipality of the land disposition agreement constitute an offer to sell parcel M. This offer the plaintiffs could reject and the city could not compel the plaintiffs to accept.
No binding agreement to sell has been pleaded and, therefore, specific performance does not lie. See Smith v. Hevro Realty Corp. , 199 Conn. 330,507 A.2d 980 (1986); New Haven Trap Rock Co. v. Tata, 149 Conn. 181,177 A.2d 798 (1962); Saraceno v. Carrano, 92 Conn. 563, 103 A. 631 (1918).
The court is aware of the provision in General Statutes § 42-110c (b) that the burden of proving exemption from CUTPA is on the person claiming it. Here, how ever, the complaint alleges that the city of West Haven is a municipal corporation and that the redevelopment agency was an agency of the municipality duly created by it.
The agreement of the parties here to attempt to resolve legal issues obviates any technicality relative to the burden of proof where the facts are undisputed. *Page 19 Further, Practice Book § 6 provides for the liberal interpretation of the Superior Court rules where it is "manifest that a strict adherence to them will work surprise or injustice."
The present motion also embraces a claim for punitive damages and attorney's fees. The allegations in the complaint, however, do not rise to the level of the quality of conduct that support a claim for punitive damages. Tessman v. Tiger Lee Construction Co., 228 Conn. 42, 54,634 A.2d 870 (1993); Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987); Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128,222 A.2d 220 (1966). Attorney's fees are not recoverable in contract actions unless there is a provision for them in the contract or by statute. State v. Bloomfield Construction Co., Inc., 126 Conn. 349, 359,11 A.2d 382 (1940).
The issue posed by the present motion is whether shareholders of a nonparty corporation may maintain an action against a wrongdoer whose conduct adversely affected the corporation and caused the loss of stock equity.
It is a general rule that a shareholder of a corporation does not have a personal or individual right of action for damages based solely on an injury to the corporation. Gaff v. Federal Deposit Ins. Corp. ,814 F.2d 311, 315 (6th Cir. 1987); see also Yanow v. Teal Industries,Inc., 178 Conn. 262, 281-82, 422 A.2d 311 (1979).
An individual, nonderivative action, is only appropriate "if the injury is one to the plaintiff as a stock holder, and to him individually, and not to the corporation" and if the injury "has affected the plaintiff directly." Id. There is no allegation in the complaint to suggest other than that all shareholders were identically situated and that their injuries were identical to those suffered by the S L Corporation. See Christ-Janer v. A. F. Conte Co., 8 Conn. App. 83, 88,511 A.2d 1017 (1986); see also Rand v. Anaconda-Ericsson, Inc.,794 F.2d 843, 849 (2d Cir.), cert. denied, 479 U.S. 987, 107 S. Ct. 579,93 L. Ed. 2d 582 (1986). "Any decrease in value of plaintiffs' shares merely reflects the decrease in value of the firm as a result of the alleged illegal conduct." Rand v. Anaconda-Ericsson, Inc., supra, 849. Thus, a loss in value of a business suffered through a stockholder's interest does not give rise to an individual, nonderivative cause of action. Where the injury suffered is solely through a decrease in stock value, "only the corporation itself . . . or a stockholder suing derivatively . . . may maintain an action against the wrong doer." Vincelv. White Motor Corp. , 521 F.2d 1113, 1118 (2d Cir. 1975). *Page 21
Clearly, the plaintiffs DiOrio, Carnavalla, Stargiotti and DiLallo are not parties to any contractual relation ship between the plaintiffs Lazaros and Sainis and the defendants here, nor is it alleged that they were. Further, the alleged joint venture agreement was not entered into until several months following the modification agreement. "[O]ne who was neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract. . . ." Coburn v.Lenox Homes, Inc., 173 Conn. 567, 570, 378 A.2d 599 (1977).
There is nothing in the terms of the modification agreement or alleged actions involving the parties to the agreement that DiOrio, Carnavalla, Stargiotti and DiLallo were intended beneficiaries under the *Page 22 agreement, or that the defendants assumed any obligation to them. Knappv. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963).
Paragraphs nineteen through twenty-seven of the second count of the complaint allege that the redevelopment agency extended to the plaintiffs an "option" to purchase parcel M and that the plaintiffs, together with DiOrio, Carnavalla, Stargiotti and DiLallo, prepared plans at considerable expense for the development of *Page 23 parcel M. These plans were approved by the redevelopment agency but disapproved by the city council of the defendant city of West Haven. The second count concludes with the naked allegation that, as a result of the denial of approval of their plans, the defendants have been unjustly enriched at the expense of the plaintiffs.
The only relationship between the parties described in the second and fourth counts is that of an express contract. Where parties have entered into an express contract, they are bound by its terms to the exclusion of inconsistent implied contract obligations. Here, the plaintiffs have alleged an express contract, and this fact precludes the application of the equitable remedy of unjust enrichment absent any allegation that the defendants breached the contract, that there was a nonwilful breach by the plaintiffs or that there was a mutual recision of the contract. Fengv. Dart Hill Realty, Inc., 26 Conn. App. 380, 383, 601 A.2d 547, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).
Actually, the thrust of the plaintiffs' allegations is enforcement of the modification agreement. Where no cause of action in unjust enrichment has been alleged, the remedy of restitution is barred. The allegations in the second and fourth counts fail to specify the fashion in which the defendants have benefitted [benefited] by the plaintiffs' action thereby entitling them to compensation in equity. "Unjust enrichment applies when justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract." (Internal quotation marks omitted.) Bolmer v. Kocet,6 Conn. App. 595, 612, 507 A.2d 129 (1986).
The court therefore orders that the motions to strike the allegations of the complaint and the prayers for relief are granted except for the allegation sounding in breach of contract insofar as it relates to its impact on