Jefferson Solar, LLC v. FuelCell Energy, Inc., AC 44777

CourtAppellate Court of Connecticut
Writing for the CourtPER CURIAM
Docket NumberAC 44777
Decision Date14 June 2022



No. AC 44777

Court of Appeals of Connecticut

June 14, 2022

Argued March 1, 2022

Procedural History

Action to recover damages for, inter alia, a violation of the Connecticut Unfair Trade Practices Act, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Young, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

Thomas Melone, for the appellant (plaintiff).

ProloyK. Das, with whom were Jennifer M. DelMonico and, on the brief, Terence J. Brunau, for the appellees (defendants).

Elgo, Cradle and Alexander, Js.




The plaintiff, Jefferson Solar, LLC, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, FuelCell Energy, Inc. (FuelCell), and SCEF1 Fuel Cell, LLC (company). On appeal, the plaintiff claims that the court improperly concluded that it lacked standing to maintain an action under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . In deciding a jurisdictional question raised by a motion to dismiss, 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. . . . [W]hen the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; internal quotation marks omitted.) North Sails Group, LLC v. Boards & More GMBH, 340 Conn. 266, 269-70, 264 A.3d 1 (2021).

This case concerns the procurement of a long-term agreement for a clean energy facility. Appended to the defendants' motion to dismiss, as an exhibit to the affidavit of Frank Wolak, senior vice president of sales at FuelCell, was a request for production (request) jointly issued by Eversource Energy and the United Illuminating Company (United Illuminating) on April 30, 2020, for a contract to sell energy pursuant to the shared clean energy facility program codified in General Statutes § 16-244z. All such contracts require approval by the Public Utilities Regulatory Agency (PURA). See General Statutes § 16-244z (a) (2).

Pursuant to the terms of the request, "bids that [did] not include . . . proof of site control" would "not be considered." Section 4.4 of the request provides, as a prerequisite to eligibility, that a bidder must submit a "Bid Certification Form, including the affidavit from the owner of the project site and the applicable documentation demonstrating that the Bidder has control


of the generation site, or an unconditional right, granted by the property owner, to acquire such control . . . ." Section 2.4.1 further specifies what is required for "Proof of Site Control," stating in relevant part: "The Bidder must demonstrate that it has control of the generation site, or an unconditional right, granted by the property owner, to acquire such control. ... In order to be considered to have site control for generation, the Bidder must provide copies of executed documents between the Bidder and [the] property owner showing one of the following: (a) that the Bidder owns the site or has a lease or easement with respect to the site on which the [facility] will be located ... or (b) that the Bidder has an unconditional option agreement to purchase or lease the site . . . ."

The plaintiff and the company each submitted bids in response to the request. The company proposed a 2.8 megawatt fuel cell facility on land owned by the city of Derby (city) and located at 49 Coon Hollow Road (property). Its bid included the affidavit of Richard Dziekan, the mayor of the city, in which he attested that the company had "control of the generation site, or an unconditional right ... to acquire such control."[1] That bid also included a copy of an option to lease agreement between the city and FuelCell regarding the property (option agreement), as well as an assignment of that option from FuelCell to the company (assignment).[2]The company's bid ultimately was selected for a project in United Illuminating territory.

The plaintiff thereafter commenced the present action against the defendants. The operative complaint is dated October 22, 2020, and contains two counts.[3] In count one, the plaintiff sought a declaratory ruling that the option agreement "does not provide the defendants with any legally enforceable rights" due to the city's alleged failure to comply with the requirements of the city charter and General Statutes § 7-163e. In count two, the plaintiff alleged that the defendants had submitted "a false bid certification" in violation of CUTPA as a result of the city's alleged failure to comply with the requirements of the city charter and § 7-163e "prior to executing" the option agreement.

On December 10, 2020, the defendants filed a motion to dismiss the action, alleging, inter alia, that the plaintiff lacked standing.[4] That motion was accompanied by Wolak's affidavit and copies of the request, the company's bid, the option agreement, and the assignment. On December 21, 2020, the plaintiff filed an objection to the motion to dismiss, but did not submit counteraffidavits or any other evidence.

On February 18, 2021, the court ordered "all briefing, documentation and affidavits" related to the motion to dismiss to be filed by March 19, 2021. In accordance with that order, both parties filed supplemental briefs on March 19, 2021. At that time, the plaintiff offered


the affidavit of its attorney, Thomas Melone, who averred that the plaintiff had provided notice of the action to the city. The defendants also submitted additional documentation.[5] In its "further objection" to the motion to dismiss, the plaintiff stated in relevant part: "The foundation of the plaintiffs challenge rests on the nonbinding option [agreement] executed between [the defendants] and the [city]. . . . The [city] failed to engage in any competitive process for its disposition of a real property interest, violating its city charter and [§] 7-163e."

By memorandum of decision dated April 30, 2021, the...

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