Opinion
No. HHB CV030523029 S
May 18, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #124.00
The plaintiffs filed a three-count complaint alleging misrepresentation, breach of sales agreement and unjust enrichment relative to their purchase of a single-family home from the defendants on or about July 26, 2002. Subsequently, the second count was withdrawn leaving only the first count (misrepresentation) and the third count (unjust enrichment). The defendants have filed a motion for summary judgment (#124.00) claiming that there are no genuine issues of material fact in dispute. The plaintiffs have filed a memorandum in objection to the defendants' motion. Both parties have filed supplemental memoranda and oral argument was held before the court on March 13, 2006.
I. BACKGROUND
The plaintiffs purchased from the defendants property at 34 Fairway Rd., Southington, Connecticut in the amount of $200,000 pursuant to a contract dated July 14, 2002. As part of the purchase, the plaintiffs reviewed the Residential Property Condition Disclosure Report, which plaintiffs performed an inspection of the premises through a home inspection service. After receiving the results of the inspection, the closing for the property was held on or about July 26, 2002. At no time prior to the closing did the plaintiffs have any direct conversation with the defendants regarding the condition of the property. The first time the parties physically met was at the closing. No representations were made to the plaintiffs by the defendants regarding the condition of the property other than those contained in the disclosure report. At various times following the closing, problems arose with the condition of the house. The plaintiffs claim these conditions were covered by various reporting requirements under the Residential Property Condition Disclosure Report and that the defendants had indicated on the form that there were no problems in those specific areas. They claim that, contrary to this representation, the defendants had actual knowledge of the problems at the time they executed the disclosure report and failed to disclose them. The conditions complained of by the plaintiffs are set forth in paragraph 8 of the first count of the amended complaint and they are as follows:
a. The hot water heater malfunctioned and leaked water;
b. The waste water pipes backed-up and leaked water in both the downstairs bathroom and basement areas each time the washing machine was in use;
c. The garbage disposal and washing machines backed-up while in use due to an undersized waste pipe;
d. A large number of electrical outlets throughout the house did not work and one outlet in the kitchen caused a fire which subsequently burned out all the other outlets in the kitchen area;
e. The wall in downstairs bathroom/laundry rooms was damaged from water which leaked from the roof through the walls of the second floor bathroom and first floor;
f. Window valances throughout the house separated and cracked;
g. Mildew bled though the exterior paint on the entire house;
h. The hardwood floors throughout the house and, particularly, the stairs leading to both the bedrooms and family room area separated;
i. The screened-in porch floods when it rains;
j. The driveway flooded when it rains; and
k. The pool motor seized and did not work.
In their answer, the defendants left the plaintiffs to their proof on these allegations.
II. STATEMENT OF LAW
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 379; see 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140, 158, 888 A.2d 141 (2006). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005). In considering such a motion, the function of the court is "not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
In support of their motion, the defendants have provided certified copies of portions of the deposition transcripts of some of the parties and fact witnesses, along with affidavits of the defendants. However, several other items submitted for the court's consideration, including additional deposition transcripts, inspection reports, contracts and addenda, are simply copies of those documents with no certification or other verification of their authenticity. Similarly, the plaintiff has responded with the submission of material that is almost entirely made up of plain copies of documents. At oral argument, the plaintiffs indicated that for the purposes of their objection, they were also relying on the documents submitted by the defendants. The court has considered these documents in ruling on the pending motion.
Normally, "only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005). "However, our Supreme Court has stated that parties may `knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.' Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Also, our Supreme Court has stated, `[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.' Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn, 245, 273, 819 A.2d 773 (2003). Here, where each party has asked the court to consider uncertified documents, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side." Fabrizio v. Bristol Housing Authority, Superior Court, judicial district of New Britain, Docket No. CV 05 5000208 (October 21, 2005, Shapiro, J.). Here, too, the court will consider those portions of the deposition testimony which are uncertified along with the other documents submitted that are not originals in the interest of judicial economy and fairness.
III. DISCUSSION
In their first count, the plaintiffs have alleged that the defendants made misrepresentations upon which the plaintiffs relied in their purchase of the property and subsequently expended sums of money toward the repair of various conditions later found on the property. However, the exact nature of the misrepresentation is not alleged by the plaintiffs. The heading of the first count simply says "Misrepresentation." There is no indication as to whether the misrepresentation is fraudulent, negligent or innocent. The heading of the count is not dispositive of what cause of action is alleged. See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative"). It is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("Because we are bound by the four corners of the plaintiffs complaint, we must examine the specific language to determine the particular causes of action alleged."). A review of the plaintiffs' first count contains no reference to either a negligent or innocent misrepresentation. Because the amended complaint alleges that the defendants had actual knowledge of the problems with the house and that they failed to disclose such problems in the report, the court reads that count as sounding in fraudulent misrepresentation as opposed to a negligent or innocent misrepresentation.
The elements of fraudulent misrepresentation are: "(1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his [or her] detriment." (Internal quotation marks omitted.) Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981). The standard of proof for any claim of fraudulent misrepresentation is that of clear and convincing evidence. Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 296, 300, 478 A.2d 257 (1984). Where the claim of fraud is based on nondisclosure of material information, it must be noted that a mere nondisclosure does not normally amount to fraud. Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977). There must be "a failure to disclose known facts and, in addition thereto, a request or an occasion or circumstance which imposes a duty to speak . . . Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak." (Citations omitted; internal quotation marks omitted.) Id.; see Dockter v. Slowik, 91 Conn.App. 448, 458, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).
A review of the evidence presented to the court in support of the positions of both parties leads to the court to the conclusion that there is no genuine issue of material fact as to several of the factual allegations of fraudulent misrepresentation contained within paragraph 8 of the first count of the amended complaint; specifically, paragraphs 8b, 8c, 8d, 8g, 8i and 8k. However, as to the remaining allegations within paragraph 8, reading the amended complaint in the light most favorable to the non-movant, there remains a genuine issue of material fact between the parties. The plaintiffs have kept in issue whether the defendants had actual knowledge of certain conditions which were not disclosed on the disclosure report. Whether the evidence supports a claim of fraudulent misrepresentation is a question of fact. Citino v. Redevelopment Agency, 51 Conn.App. 262, 273, 721 A.2d 1197 (1998).
Defendants argue in their brief that in a situation such as the present case, the court may grant partial summary judgment as to those allegations where there is no genuine issue of material fact. There does not appear to be any appellate authority on whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment. Here the defendants have asked that in the event the court finds summary judgment is not applicable to an entire count, that it be granted as to a number of factual allegations. In most of the cases allowing a partial summary judgment within a single count, the court was asked to remove a legal theory from a count which had improperly joined multiple causes of action. In the instant case, the request of the defendants is in effect an attempt to surgically remove factual allegations of misrepresentation rather than the cause of action. As Judge Hadden noted in Tracy v. Charisma Aviation, Ltd., Superior Court, judicial district of New Haven, Docket No. CV 0270725 (January 20, 1993, Hadden, J.) ( 8 C.S.C.R. 283, 284), "[w]hile there is some merit to having a procedure which would allow for partial summary judgments, the rules of practice do not now provide for such a procedure."
The majority of Superior Court cases have found that the Connecticut rules of practice do not permit partial summary judgment on a single count of a complaint. See, e.g., Pitcher v. Hammrick, Superior Court, judicial district of New London, Docket No. CV 03 0566770 (April 12, 2005, Jones, J.); Home Ins. Co. v. Hartford Underwriters Ins. Co., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 03 0103487 (April 6, 2005, Quinn, J.) ( 39 Conn. L. Rptr. 60); Fiamengo v. Great American Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 00 0802480 (November 16, 2004, Shapiro, J.); Vernon Computer v. Round Up 4 Network, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 02 0394044 (August 15, 2003, Wolven, J.) Danbury Mall Associates v. Meghas, Superior Court, judicial district of Danbury, Docket No. CV 01 0343385 (February 26, 2002, Doherty, J.); Cannata v. Ricciardi, Superior Court, judicial disirict of Waterbury, Docket No. CV 98 0144102 (May 15, 2001, Thomas, J.); Finelli v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 95 0327206 (June 19, 1997, Skolnick, J.); Cave v. Family Farm Mutual Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 95 0125978 (December 31, 1996, Vertefeuille, J.) ( 18 Conn. L. Rptr. 396); Bank of Boston v. Southbury Hotel Associates, Superior Court, judicial district of Waterbury, Docket No. CV 0111813 (July 18, 1994, Pellegrino, J.); Augenstern v. Bush, Superior Court, judicial district of New Haven, Docket No. CV 90 0304233 (December 28, 1993, Gray, J.); Tracy v. Charisma Aviation, Ltd., Superior Court, judicial district of New Haven, Docket No. CV 0270725 (January 20, 1993, Hadden, J.) ( 8 C.S.C.R. 283) ( 8 Conn. L. Rptr. 282); Herrman v. Stamford, Superior Court, judicial district of Fairfield, Docket No. CV 88 0254069 (July 21, 1992, Lewis, J.) (2 Conn. L. Rptr 817); Dunham v. Cigna Ins., Co., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 0334030 (April 5, 1991, Hennessey, J.) ( 6 C.S.C.R. 437) ( 3 Conn. L. Rptr. 819); Schofield v. Bic Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 860021244 (January 31, 1991, Fuller, J.) ( 3 Conn. L. Rptr. 229). A minority of courts have entered summary judgment on one or more paragraphs within a single count. See, e.g., Mazurek v. Great American Ins. Co., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 01 0177433 (December 16, 2004, Schuman, J.) ( 38 Conn. L. Rptr. 402); Ambrosino v. Superior Planting Co., Superior Court, judicial district of Fairfield, Docket No. CV 94 0309952 (September 16, 1996, Maiocco, J.); Niper v. Johnston, Superior Court, judicial district of Fairfield, Docket No. CV 89 0256309 (February 28, 1992, Lewis, J.) ( 6 Conn. L. Rptr. 112); Cocca v. Pocesta, Superior Court, judicial district of Waterbury, Docket No. CV 0086470 (July 13, 1990, Barnett, J.) ( 2 Conn. L. Rptr. 69).
See, e.g., Ambrosino v. Superior Planting Co., supra, Superior Court, Docket No. CV 94 0309952; Niper v. Johnston, supra, Superior Court, 6 Conn. L. Rptr. 4; Cocca v. Pocesta, supra, 2 Conn. L. Rptr. 69. Also of note is Electrical Contractors, Inc. v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 0831259 (March 17, 2006, Scholl, J.) ( 40 Conn. L. Rptr. 878) (holding that "the allowance of summary judgment procedure here to attack individual allegations in support of a claim does not serve to terminate the Plaintiff's breach of contract claim and the court [can] not enter summary judgment"). There the court noted that "Practice Book § 17-51 . . . authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim."
As to the third count of unjust enrichment, the defendants claim that the plaintiffs have failed to present evidence showing that the payments made to the defendants were in excess of the value of the property and that the value of the property in its present state is less than the purchase price. They claim that based on the facts presented with their motion, the elements of unjust enrichment have not been met. "Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 194, 880 A.2d 945 (2005).
However, it is not the burden of the non-movant to establish that there is no genuine issue of material fact on a motion for summary judgment. That burden belongs to the defendants. Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004) ("In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact."). Defendants have also noted in their brief that "[t]he Plaintiffs have only claimed that they will have to expend `large sums to repair or replace problem portions of the house.' (Amended Complaint, Third Count ¶ d)." However, this misstates the plaintiffs' allegations. The actual wording of the relevant portion of the amended complaint is that "the plaintiffs expended and will expend large sums to repair or replace the problem portions of the house." (Emphasis added.) (Amended Complaint, Third Count ¶ 2d.) The plaintiffs further allege that the payments made to the defendants were a direct and substantial benefit to the defendants, that the payments far exceeded the value of the house and that such payment was a detriment to the plaintiffs. While the plaintiffs' evidence may be insufficient to establish at a full hearing on the merits before a trier of fact that the elements of an unjust enrichment claim have been met, for purposes of a motion for summary judgment the burden is on the defendants to establish that there is no genuine issue of material fact. While, as discussed above relative to the first count, many of the facts alleged by the plaintiffs do not appear to create such an issue, there are sufficient facts in dispute to allow the claim for unjust enrichment to proceed. Moreover, the court cannot grant a partial summary judgment for the reasons previously cited.
IV. CONCLUSION
In this case, the evidence submitted by the defendants in support of their motion as to several of the subsections of paragraph 8 of the first count directly undermines the plaintiffs' claim of misrepresentation on the part of the defendants. However, as to the remainder of the subsections within paragraph 8, reading the amended complaint in the light most favorable to the non-movant, the plaintiffs have set forth sufficient evidence in response to the defendants' motion so as to demonstrate that there remains a genuine issue of material fact between the parties. "It is well established that a plaintiff only has to prove one specification of negligence in a complaint, and not all of them, to recover from a defendant." Schofield v. Bic Corp., supra, 3 Conn. L. Rptr. 229. For the foregoing reason the motion for summary judgment is denied as to the first count.
As to the claim of unjust enrichment, the defendants have failed to establish that there is no genuine issue of material fact. Accordingly, the motion for summary judgment is denied as to that count.
So ordered.