Opinion
HHDCV126029887S
02-11-2016
James Wishneski et al. v. Andrzej Sielski
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Susan A. Peck, J.
On March 11, 2012, the plaintiffs, James and Meghan Wishneski, commenced this action by service of process on the defendant, Andrzej Sielski. The dispute between the parties arises out of the sale of a residential property in Canton.
As noted by State Marshall Peter J. Perone's return of service, he left a verified true and attested copy of the writ, summons, complaint, and statement of amount in demand at the usual place of abode of the defendant on March 11, 2012.
As alleged in the plaintiffs' third amended complaint, the parties entered into a real estate purchase contract on or about January 10, 2009, whereby the defendant agreed to sell, and the plaintiffs agreed to buy, a property located at 308 Cherry Brook Road in Canton (property). In connection with this transaction of real estate, the defendant provided the plaintiffs with a residential property disclosure report (disclosure report) prior to the closing date. The disclosure report is dated September 14, 2008, while the plaintiffs' signatures on the disclosure report are dated January 7, 2009. The actual closing for the property took place on March 13, 2009.
On February 20, 2015, the plaintiffs filed a request to amend their second amended complaint and simultaneously filed their third amended complaint. The defendant did not object to this request. Practice Book § 10-60 provides in relevant part that " [e]xcept as provided in Section 10-66, a party may amend his or her pleadings . . . at any time subsequent to that stated in the preceding section . . . (3) [b]y filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." Having failed to object to the plaintiffs' request within fifteen days, the defendant is deemed to have consented to the filing of the third amended complaint. Accordingly, the operative complaint is the third amended complaint.
Pursuant to the disclosure report, the defendant was obligated to disclose his knowledge of any problems related to basement water seepage, rot and water damage, water drainage problems, and driveway problems. The defendant claimed on this disclosure report that he had no knowledge of any such problems with the property. Moreover, the defendant marketed the property as a " Builder's Own Extreme Home Makeover! Stripped down to the rafters and rebuilt!" The plaintiffs allege that they relied on such representations in purchasing the property.
The plaintiffs allege that, sometime between April and June 2009, they began to notice water drainage problems around the perimeter of the property. In early March 2011, the plaintiffs noticed that portions of their house located on the property were flooded with twelve to twenty-four inches of water. A similar occurrence took place in August 2011, when flood water surrounded the entire perimeter of the property, washing away their driveway and closing all of Cherry Brook Road. Due to the August 2011 flooding, the plaintiffs and their young children needed to be evacuated by emergency personnel. Moreover, the Federal Emergency Management Agency (FEMA) issued a natural disaster designation for the county in which the property was located.
Based on these alleged facts, the plaintiffs filed a seven-count complaint, alleging fraudulent misrepresentation (count one), negligent misrepresentation (count two), breach of contract (count three), breach of implied covenant of good faith and fair dealing (count four), a CUTPA violation (count five), intentional infliction of emotional distress (count six), and negligent infliction of emotional distress (count seven). The defendant filed an answer on January 3, 2014, and raised the statute of limitations as a special defense to counts one, two, five, six, and seven. On November 11, 2014, the defendant moved for summary judgment, arguing that he was entitled to judgment as a matter of law based on statute of limitations and substantive grounds. The defendant attached the real estate purchase contract and portions of the plaintiffs' depositions to his memorandum of law. Subsequently, on the same date that the plaintiffs filed their request to amend their second amended complaint; see footnote 2 of this memorandum; the plaintiffs filed their objection to the defendant's motion for summary judgment. The plaintiffs attached various exhibits to their memorandum of law, including, inter alia, the disclosure report and additional portions of their deposition testimonies. The defendant did not file a reply.
In the present case, neither party submitted certified copies of the deposition transcripts. Nor did either party submit an affidavit that addresses the authenticity of the documents offered in support of and in opposition to the motion for summary judgment. Nonetheless, neither party has objected to the admissibility of the documents currently before the court and both parties submitted the same real estate purchase contract. Accordingly, the court has considered the exhibits submitted from both sides in support of and in opposition to the defendant's motion for summary judgment. Although the documentation submitted in connection with the parties' memoranda of law reveals that the material facts contained in the plaintiffs' third amended complaint are essentially undisputed, it is important to note that " [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012) (" Whether a trial court should consider documentary evidence submitted by a party in relation to a motion for summary judgment presents an evidentiary issue to which we apply an abuse of discretion standard"). Where both parties have submitted identical copies of the same document as evidence to be considered by the court in support of their respective positions on a party's motion for summary judgment, " both can be understood to have admitted by their references to it in their affidavits, briefs and arguments that the [document] before the court was in fact authentic." Id., 506-07. Moreover, where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
This court heard oral argument on this matter on the November 2, 2015 short calendar. Additional factual allegations will be included as necessary.
SUMMARY JUDGMENT STANDARD
The standard governing this court's review of the present motion for summary judgment is well settled. " [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49 (summary judgment standard). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Nodoushani v. Southern Connecticut State University, 152 Conn.App. 84, 90-91, 95 A.3d 1248 (2014).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Id., 321.
" [A]lthough, generally, the device used to challenge the sufficiency of the pleadings is a motion to strike; see Practice Book § 10-39; our case law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading" if a party has waived its right to file a motion to strike by filing a responsive pleading. (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 535 n.10, 51 A.3d 367 (2012). " [T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . [The Supreme Court] has recognized that there are competing concerns at issue when considering the propriety of using a motion for summary judgment for such a purpose. On the one hand, [i]f it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not [cure that insufficiency], [there is] no reason why [a] defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed . . . It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint . . . Thus, failure by [a defendant] to [strike] any portion of the . . . complaint does not prevent [that defendant] from claiming that the [plaintiff] had no cause of action and that [summary judgment was] warranted . . . [Indeed], [the Supreme Court] repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried . . . On the other hand, the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts [a] plaintiff out of court . . . [while the] granting of a motion to strike allows [a] plaintiff to replead his or her case." (Citations omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236-37, 116 A.3d 297 (2015). Indeed, " [i]f a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law." Stuart v. Freiberg, supra, 316 Conn. 823.
On December 16, 2013, the court, Schuman, J., denied the defendant's motion to strike count six of the plaintiffs' second amended complaint. (#142.86) Thereafter, the defendant filed an answer to the plaintiffs' second amended complaint (#145) and thereby waived his right to file a motion to strike the additional counts. See Practice Book § § 10-6 and 10-7.
A
Count One--Fraudulent Misrepresentation
In count one, the plaintiff additionally alleges that the defendant purchased the property in or around March 2007, and, in April 2007, the property was exposed to severe flooding that washed away the driveway at the property and resulted in the closure of Cherry Brook Road. After the August 2011 flooding, the plaintiffs examined their home and took photographs of their basement, which depicted newer wood beams attached to rotten and moldy wood beams and new building materials alongside older building materials; some of the newer building materials were date stamped with " March 2007" and " April 2007." The plaintiffs claim that, in renovating the property and based on prior flooding, the defendant was aware of water seepage, rot and water damage, water drainage problems, and driveway problems at the property. Thus, his representations on the disclosure report were knowingly untrue and induced the plaintiffs to proceed to the purchase of the property.
The defendant argues that the plaintiffs' fraudulent misrepresentation claim is time barred by General Statutes § 52-577. Specifically, he argues that, pursuant to the purchase contract, he was required to provide the plaintiffs with a disclosure report prior to the signing of the purchase contract. Thus, because the plaintiff alleges that any fraudulent misrepresentations were contained in the disclosure report dated September 14, 2008, which was incorporated into the purchase and sale agreement dated January 10, 2009, any alleged misrepresentations were made prior to January 10, 2009. He further argues that there is no evidence that the defendant spoke to the plaintiffs at any time after signing the real estate contract up to and including the date of closing. In response, the plaintiffs argue that the date of closing, March 13, 2009, is the relevant date for statute of limitations purposes. Alternatively, the plaintiffs argue that a genuine issue of material fact exists as to whether the defendant fraudulently concealed the plaintiffs' cause of action and, pursuant to General Statutes § 52-595, such concealment tolled the applicable statute of limitations.
General Statutes § 52-595 provides that " [if] any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." " In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it." (Internal quotation marks omitted.) Mountaindale Condominium Ass'n, Inc. v. Zappone, 59 Conn.App. 311, 319 n.11, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). Upon this court's review of the pleadings, the plaintiffs did not initially plead § 52-595 in response to the defendant's special defenses. See Defendant's Answer and Special Defenses (#145). Nonetheless, the plaintiffs did so plead in their third amended complaint.
It is well settled that " [c]ivil actions are commenced by service of process. General Statutes § 52-45a. An action is 'brought' against a defendant on the date on which the writ is served on that defendant." Dickerson v. Pincus, 154 Conn.App. 146, 149, 105 A.3d 338 (2014). Moreover, " [f]raudulent misrepresentation is an intentional tort." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010). " [T]he tort of fraudulent misrepresentation . . . is governed by the three-year statute of limitations period for general torts." Wedig v. Brinster, 1 Conn.App. 123, 137, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984).
Section 52-577 provides that " [n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of ." (Emphasis added.) " Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues." LaBow v. Rubin, 95 Conn.App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). " The three year provision of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections." Lambert v. Stovell, 205 Conn. 1, 4, 529 A.2d 710 (1987); see also Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 299, 830 A.2d 346 (2003).
In his memorandum of law, the defendant appears to construe the " from the date of the act or omission complained of" language contained in § 52-577 in terms of when he delivered the disclosure report to the plaintiffs, which forms the principal basis of the plaintiffs' complaint, or when the parties signed the purchase contract. Contrary to the defendant's interpretation, courts have consistently recognized that, in tort claims arising out of the sale of residential property that are within the purview of the statute of limitations contained in § 52-577, the relevant date for statute of limitations purposes is the date of closing. See, e.g., Kidder v. Read, 150 Conn.App. 720, 727, 93 A.3d 599 (2014) (concluding that defendants were entitled to summary judgment for fraud and misrepresentation claims, which arose out of real estate transaction, after using date of closing as relevant date for statute of limitations analysis); Capasso v. McGowan, Superior Court, judicial district of New Haven, Docket No. CV-11-6025501 (March 26, 2013, Blue, J.) (55 Conn. L. Rptr. 740, 741, *3) (noting that tort claims arising out of sale of residential property were governed by three-year statutes of limitations and repose contained in General Statutes § § 52-577 and 52-584, and that " [t]he present action was commenced well over three years from the closing " [emphasis added]); LaChance v. Day, Superior Court, judicial district of New Britain, Docket No. CV-09-5011736 (March 9, 2012, Swienton, J.) (53 Conn. L. Rptr. 718, 719-20, *9) (using date of closing as date for statute of limitations analysis notwithstanding fact that disclosure report was delivered prior to closing date); Coachman-Francis v. Connecticut Attorneys Title Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-10-6011498-S, (January 3, 2012, Schuman, J.) (statute of limitations for § 52-577 runs from " the date of the act or omission complained of, " which " was the purchase or closing date"). Thus, the relevant date for statute of limitations purposes is the date of closing.
The parties herein agree that the closing took place on March 13, 2009. The plaintiffs commenced this action by service of process on March 11, 2012. See footnote 1 of this memorandum. Section 52-577 requires that the plaintiffs bring their action within three years " from the date of the act or omission complained of, " which courts consistently interpret in this context to be the closing date. Based on the documentation before the court, it is clear that the plaintiffs brought this action within the applicable statute of limitations. For this reason, the defendant's motion for summary judgment as to count one must be denied, and the court need not address the plaintiffs' alternative fraudulent concealment argument.
B
Count Two--Negligent Misrepresentation
The factual basis of the plaintiffs' negligent misrepresentation claim is premised on the same facts mentioned above in count one. The defendant argues that the plaintiffs' negligent misrepresentation claim is time barred by General Statutes § 52-584. Specifically, he argues that, by the plaintiffs' own admissions, they knew of water damage problems around the property on or about April and June 2009. Moreover, he argues that the plaintiffs cannot present any evidence that would toll the applicable statute of limitations. In response, the plaintiffs argue that the date of closing, March 13, 2009, is the relevant date for statute of limitations purposes and, therefore, the lawsuit commenced in accordance with § 52-584. Additionally, they concede that they noticed water puddling across their yard in spring 2009, but they were unaware that it was a major issue until their basement flooded in March 2011.
In the alternative, the plaintiffs also argue that their negligent misrepresentation claim is not time barred because the defendant fraudulently concealed the plaintiffs' cause of action in violation of § 52-595. This alternative argument is properly before the court. See footnote 5 of this memorandum.
Claims predicated on injury to property caused by negligence are governed by the statute of limitations and repose contained in § 52-584. Lombard v. Edward J. Peters, Jr., P.C., supra, 79 Conn.App. 299 (" [W]here the plaintiffs' claim is predicated on injury to their personal property caused by negligence, it is clear that they have brought a claim within the purview of § 52-584"). Section 52-584 provides in relevant part that " [n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." (Emphasis added.)
The Connecticut Supreme Court has evaluated the contours of § 52-584, noting that " [t]he limitation period for actions in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term 'injury' is synonymous with 'legal injury' or 'actionable harm.' 'Actionable harm' occurs when the plaintiff discovers, on in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . Furthermore, 'actionable harm' may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm . . . Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered 'actionable harm' is ordinarily a question reserved for the trier of fact ." (Citations omitted; emphasis added; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004). Moreover, " [i]n the context of a motion for summary judgment, the court's role is not to decide whether the plaintiff date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term 'injury' is synonymous with 'legal injury' or 'actionable harm.' 'Actionable harm' occurs when the plaintiff discovers, on in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . Furthermore, 'actionable harm' may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm . . . Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered 'actionable harm' is ordinarily a question reserved for the trier of fact ." (Citations omitted; emphasis added; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004). Moreover, " [i]n the context of a motion for summary judgment, the court's role is not to decide whether the plaintiff complied with the statute, but whether an issue of material fact regarding compliance with the statute exists." Rivera v. Fairbank Management Properties, Inc., 45 Conn.Supp. 154, 155, 703 A.2d 808 (1997).
" Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 351-52, 71 A.3d 480 (2013). " A vendor of residential property is liable to a purchaser for a negligent misrepresentation of the condition of the property to that purchaser if the purchaser would not otherwise have agreed to the terms of the sale." Giametti v. Inspections, Inc., 76 Conn.App. 352, 358-59, 824 A.2d 1 (2003).
The plaintiffs concede that they began to notice water puddling across their yard as early as April 2009. If this was the point when the plaintiffs should have discovered an " actionable harm, " then, pursuant to § 52-584, their claim for negligent misrepresentation would need to have been filed by April 2011. Nonetheless, the documentation before this court indicates that the plaintiffs may not have been aware of any " major" water seepage or flooding problems until March 2011. If this was the point when the plaintiffs should have discovered an " actionable harm, " then their claim for negligent misrepresentation would have been filed in accordance with § 52-584, as this action commenced on March 11, 2012. Notwithstanding the plaintiffs' concessions, the defendant has failed to come forward with evidence that eliminates any real doubt as to when the plaintiffs should have discovered an " actionable harm." Under these circumstances, a genuine issue of material fact exists as to whether the plaintiffs complied with § 52-584; specifically, a genuine issue of material fact remains as to whether the plaintiffs should have discovered an actionable harm in April 2009, or March 2011. See Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 313 (summary judgment appropriate only when material facts concerning statute of limitations are not in dispute). As previously stated, " the determination of when a plaintiff in the exercise of reasonable care should have discovered 'actionable harm 'is ordinarily a question reserved for the trier of fact." Lagassey v. State, supra, 268 Conn. 749. Notably, it is unclear when the plaintiffs suffered a pecuniary harm as a result of the defendant's alleged misrepresentation. For these reasons, the motion for summary judgment as to count two must be denied, and the court need not address the plaintiffs' alternative argument.
C
Count Three--Breach of Contract
As to count three, the defendant argues that he is entitled to judgment as a matter of law based on the ground that he complied with the terms of the parties' real estate purchase contract. Specifically, he directs this court's attention to paragraph 19 of the contract, which provides that " [t]o the extent required by P.A. 95-311, Seller shall furnish Buyer with a Residential Property Disclosure Report before Buyer's execution of this Contract or credit Buyer with $300.00 toward the purchase price at closing." He argues that he complied with the terms of this provision. Moreover, he argues that the disclosure report was not a warranty to the buyer or a substitute for a property inspection. In response, the plaintiffs argue that a seller can be held liable for a breach of contract when the seller makes misrepresentations on a property condition disclosure report that is provided in connection with a sale for residential real estate.
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). " [W]here there is definitive contract language . . . the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 101, 84 A.3d 828 (2014). " It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known and unknown hazards and risks that may arise as a consequence of the execution of the contract." Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993). " Parties are [also] free to bargain for disclaimer clauses in a contract for the sale of real property." Gibson v. Capano, 241 Conn. 725, 731, 699 A.2d 68 (1997).
" Our legislature enacted [General Statutes] § 20-327b, otherwise known as the Uniform Property Condition Disclosure Act, to reduce the risk of miscommunication regarding residential property between a vendor and a prospective purchaser. The statute requires a vendor of such property to provide 'a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser's execution of any binder [or] contract to purchase . . .' General Statutes § 20-327b(a). Such a report must include a provision informing the purchaser that any representation made by the vendor in the § 20-327b report is limited to the vendor's actual knowledge . General Statutes § 20-327b(d)(2)(A). The statute requires every report to include a provision that encourages the potential purchaser to have the property inspected by a professional inspector. General Statutes § 20-327b(d)(2)(B). Furthermore, the § 20-327b report must inform the purchaser that any representation made by the vendor does not constitute a warranty by the vendor. General Statutes § 20-327b(d)(2)(D)." (Emphasis in original.) Giametti v. Inspections, Inc., supra, 76 Conn.App. 358-59. Moreover, " [a] photocopy, duplicate original, facsimile transmission or other exact reproduction or duplicate of the written residential condition report containing the prospective purchaser's written receipt shall be attached to any written offer, binder or contract to purchase. A photocopy, duplicate original, facsimile transmission or other exact reproduction or duplicate of the written residential condition report containing the signatures of both seller and purchaser shall be attached to any agreement to purchase the property." General Statutes § 20-327b(a).
As the plaintiffs argue, courts have found that a misrepresentation on a disclosure report that is made with knowledge of its falsity is sufficient to find that the defendant breached a contract for the sale of real estate. See, e.g., Oddo v. Warren, Superior Court, judicial district of New Britain, Docket No. CV-07-5003533-S, (January 3, 2008, Trombley, J.) (finding that defendants were well aware of persistent flooding problems in basement, but did not disclose this information on disclosure report, and therefore concluded that defendants breached purchase and sale agreement); Barbour v. Zapata, Superior Court, judicial district of New Britain, Docket No. CV-05-4006452-S, (November 19, 2007, Shapiro, J.) (finding that defendants breached contract for sale of real estate when they knowingly made misrepresentations on disclosure report about condition of decks and pool where contract required sellers to provide disclosure report that was made a part of real estate contract).
Notwithstanding the defendant's arguments that he complied with the provisions of the contract and that the disclosure report was not a warranty or a substitute for a property inspection, genuine issues of material fact remain that precludes the entry of summary judgment as to this count. The plaintiffs allege, and the defendant appears to not dispute, that the disclosure report was part of the contract when the parties signed the purchase agreement. See also General Statutes § 20-327b(a) (disclosure report must be attached to contract for sale). The disclosure report reflected the defendant's actual knowledge that the property was one that was free from any rot and water damage or water drainage problems. See General Statutes § 20-327b(d)(2)(A) (representations in report are " [t]o the extent of the seller's knowledge as property owner"). Moreover, the plaintiffs provided portions of their deposition testimonies which indicate that the plaintiffs relied on the representations contained in the disclosure report in contracting with the defendant, but that the property they bargained for was one that was exposed to flooding in March and August 2011. Under these circumstances, genuine issues of material fact remain as to whether the representations contained in the disclosure report, which was incorporated into the purchase agreement, truly represented the defendant's actual knowledge of the property's condition. For these reasons, the defendant has failed to carry his burden of demonstrating the absence of any genuine issue of material fact. See, e.g., Nodoushani v. Southern Connecticut State University, supra, 152 Conn.App. 90-91. Therefore, the motion for summary judgment must be denied as to count three.
The following excerpts from the defendant's memorandum of law in support of his motion for summary judgment are noteworthy: " By the plaintiffs' own admissions, all of the alleged false representations made by the defendant were allegedly made in order to induce the plaintiffs to proceed with the purchase of the property are contained in the disclosure report dated September 14, 2008, and incorporated into the purchase and sale agreement dated January 10, 2009 ." (Emphasis added.) (Def. Mem. page 7); " In the present case, the plaintiffs' complaint alleges that the fraudulent misrepresentations were contained within the disclosure report which was made a part of the real estate purchase contract on January 10, 2009." (Def. Mem. pages 9-10.)
D
Count Four--Breach of Implied Covenant of Good Faith and Fair Dealing
The defendant argues that he is entitled to judgment as a matter of law on count four based on the ground that the plaintiffs have failed to allege any conduct to support such a claim. Specifically, he argues that, as alleged, any inducement or fraudulent misrepresentation on the disclosure report took place prior to the formation of any contract and, therefore, the plaintiffs cannot maintain a claim for breach of implied covenant of good faith and fair dealing. Moreover, he argues that he satisfied his obligations under the contract when he provided the plaintiffs with the deed to the subject property in exchange for the payment of the purchase price. In response, the plaintiffs argue that they relied on the defendant's alleged misrepresentations in the disclosure report throughout negotiations between the parties and up to the date of closing. Thus, the defendant's misrepresentations affected both the negotiation phase of the transaction and the performance phase.
(September 1, 2005, Riley, J.) (denying motion for summary judgment where plaintiffs failed to provide an adequate memorandum of law). Having failed to brief his apparent argument that count four is barred by the applicable statute of limitations, such argument is deemed abandoned. The defendant also appears to argue that count four is barred by the applicable statute of limitations. Beyond a passing reference in the particular section head in his memorandum of law devoted to count four, the defendant fails to substantively argue that count four is barred by the applicable statute of limitations. " [The Connecticut Supreme Court has] repeatedly . . . stated that [it is] not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); see also Nelson v. Phommachanh, Superior Court, judicial district of Windham, Docket No. CV-05-4001999-S,
Under these circumstances, the defendant essentially challenges the legal sufficiency of count four of the plaintiffs' third amended complaint solely on the ground that the plaintiff cannot maintain a claim for breach of the duty of good faith and fair dealing based on conduct occurring prior to the formation of a contract. Accordingly, he has the burden of showing that count four is legally insufficient and that any defects contained therein cannot be cured by repleading. See Ferri v. Powell-Ferri, supra, 317 Conn. 236-37 (" [T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading").
As case law makes clear, " [i]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . [E]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . In accordance with these authorities, the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Miller v. Guimaraes, 78 Conn.App. 760, 772-73, 829 A.2d 422 (2003), quoting Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002). " To recover for breach of the duty of good faith and fair dealing, the plaintiffs had to allege and prove that the defendant[s] engaged in conduct design[ed] to mislead or to deceive . . . or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . ." (Emphasis in original; internal quotation marks omitted.) Id., 773. " To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." Alexandru v. Strong, 81 Conn.App. 68, 80-81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).
In support of his motion for summary judgment, the defendant draws this court's attention to the Connecticut Supreme Court's decision in Macomber v. Travelers Property & Casualty Corp., supra, 261 Conn. 620. The plaintiffs in that case entered into structured settlement agreements with the defendants after being involved in automobile accidents. The plaintiffs " alleged that they had entered into structured settlements with the defendants 'under materially false and misleading circumstances because [the] defendants misrepresented the fundamental nature and terms of the structured settlements' by failing to disclose the actual cost and true value of the structured settlements to the plaintiffs after taking into account the rebating and short-changing schemes. The plaintiffs specifically alleged that, had the defendants disclosed these practices, they would not have agreed to the structured settlements as configured, but would have negotiated for higher settlements amounts." Id., 627. In addressing the plaintiffs' breach of the duty of good faith and fair dealing claim, the court held that " [a]s our case law makes clear, no claim for breach of the duty of good faith and fair dealing will lie for conduct occurring prior to, or during, the formation of a contract. In the present case, the plaintiffs repeatedly alleged that the defendants made material misrepresentations and omissions of fact regarding the structured settlements that induced them to enter into the agreements at issue. Because the challenged conduct underlying the plaintiffs' complaint thus took place at the negotiation and execution stage, rather than at the performance stage of their contracts, the defendants owed the plaintiffs no duty of good faith and fair dealing." (Emphasis altered.) Id., 638.
Although Macomber stands for the proposition that alleged conduct or misrepresentations which induce a plaintiff to enter into or " form " a contract with a defendant are legally insufficient to maintain a cause of action for a breach of the duty of good faith and fair dealing, that case is silent as to the legal sufficiency of such a claim when a plaintiff alleges that the defendant's conduct or misrepresentations are incorporated into and have become part of the contract at issue. Various Superior Courts addressing similar circumstances to those presently before the court have found that misrepresentations in a disclosure report, which was either delivered prior to the formation of a contract or was part of the contract itself, are a proper basis upon which a claim for a breach of the duty of good faith and fair dealing exists. See, e.g., Oddo v. Warren, supra, Superior Court, Docket No. CV-07-5003533-S (plaintiffs proved breach of covenant of good faith and fair dealing where disclosure report was part of contract and defendants provided false and misleading information on that report); Belanger v. Maffucci, Superior Court, judicial district of Hartford, Docket No. CV-05-4013892, (January 26, 2007, Elgo, J.) (plaintiffs proved breach of covenant of good faith and fair dealing where defendant knowingly withheld information regarding flooding and water drainage problems on disclosure report, which misled plaintiff into contracting with defendant); Armin v. White, Superior Court, judicial district of New Haven, Docket No. CV-01-0275718-S, (March 9, 2004, Tanzer, J.) (denying motion for summary judgment as to plaintiffs' breach of the duty of good faith and fair dealing claim where plaintiffs alleged that defendant knowingly made misrepresentations of fact on disclosure report regarding water drainage problems on property). Moreover, the Appellate Court has held that conduct that is designed to mislead and is attributed to a defendant's performance on a contract is a proper basis for a claim of breach of the implied covenant of good faith and fair dealing. See Miller v. Guimaraes, supra, 78 Conn.App. 773-74.
The plaintiffs herein allege that they contracted with the defendant for the sale of certain real estate, which had recently been rebuilt. They further allege that the defendant had prior knowledge of the property's history of water damage and water seepage problems, but made misrepresentations of fact in the disclosure report, which was part of the contract, when he denied any knowledge of such problems. Under these circumstances, the defendant has failed to carry his burden of showing that count four is legally insufficient and that any defects contained therein cannot be cured by repleading. See Ferri v. Powell-Ferri, supra, 317 Conn. 236-37. For this reason, the motion for summary judgment must be denied as to count four.
In paragraph 3 of count one, which is incorporated by reference into count four, the plaintiffs allege that they entered into a real estate purchase contract with the defendant on or about January 10, 2009. Moreover, in paragraph 4, also incorporated by reference, they allege that such " Property was marked as 'Builder's Own Extreme Home Makeover/Stripped down to the rafters and re-built."
In paragraph 21 of count one, which is incorporated by reference in count four, the plaintiffs allege that the " Defendant knew there had been a history of water seepage at the property." In paragraph 23 of count one, also incorporated by reference, the plaintiffs allege that the " Defendant knew there was rot and water damage when he attached wood beams alongside the old, rotten and moldy wood beams." Moreover, in paragraph 25 of count four, the plaintiffs allege that " [t]he Disclosure Report is part of the Contract." Finally, in paragraph 26 of count four, the plaintiffs allege that " [i]n denying he had any knowledge of basement water seepage, rot and water damage, water drainage problems and driveway problems at the Property, Defendant made misrepresentations of fact on the Contract."
E
Count Five--CUTPA Violation
The defendant argues that count five is barred by General Statutes § 42-110g(f). Specifically, he argues that any marketing of the property took place prior to the plaintiffs entering into the real estate purchase contract on January 10, 2009 and, therefore, the plaintiffs' CUTPA claim is untimely. Alternatively, he argues that CUTPA provisions do not apply, as the defendant was not engaged in the business of selling real estate. In response, the plaintiffs argue that the date of closing, March 13, 2009, is the relevant date for statute of limitations purposes. Additionally, the plaintiffs argue that there are genuine issues of material fact that the defendant was in the business of flipping homes and, therefore, CUTPA applies.
General Statutes § 42-110g provides in relevant part that " (a) [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages." Moreover, pursuant to subsection (f) of § 42-110g, " [a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter." General Statutes § 42-110b provides in relevant part that " (a) [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." " Whether the defendant is subject to CUTPA is a question of law, not fact." Biro v. Matz, 132 Conn.App. 272, 289-90, 33 A.3d 742 (2011). " [C]laims made against noncommercial sellers of real property may fail on a determination that CUTPA does not apply to such transactions." Id., 290.
In Biro, two owners of a warehouse sold their property to the plaintiffs in that case, but neither of the owners were in the business of selling real estate. Id., 274-75. The Appellate Court noted that " [n]othing in the record or the affidavits, exhibits and supporting documents attached to the motion for summary judgment or the opposition filed in response to it suggests that either of the sellers ever had engaged in the 'trade or commerce' of selling real estate in the past or that they planned to do so in the future." Id., 290. Under those circumstances, the court held that, " [b]ecause the sellers in the present case are not in the business of selling real property, CUTPA is inapplicable to the transaction in this case." Id.
As in Biro, there is an absence of evidence in the present case that the defendant was in the business of selling real estate. Therefore, CUTPA is inapplicable to the transaction between the parties as a matter of law. Id. The record before the court is devoid of evidentiary support that the defendant engaged in the " trade or commerce" of selling real estate. Although the plaintiffs argue that the defendant was " more than a normal seller of real property, " the documentation submitted in support of, and in opposition to, the motion for summary judgment fails to create a genuine issue of material fact that the defendant " ever had engaged in the 'trade or commerce' of selling real estate in the past or [had] planned to do so in the future." Id. Thus, the defendant has met his burden of showing that the defect in the plaintiffs' third amended complaint cannot be cured by repleading. Ferri v. Powell-Ferri, supra, 317 Conn. 236-37. For this reason, summary judgment must be granted in favor of the defendant on count five.
F
Count Six--Intentional Infliction of Emotional Distress
The defendant argues that the conduct alleged by the plaintiffs is insufficient to support a claim of intentional infliction of emotional distress. Specifically, he argues that the alleged conduct is not extreme and outrageous. Additionally, he argues that count six is barred by § 52-577. In response, the plaintiffs argue that the defendant's conduct was extreme and outrageous when he not only failed to disclose such defects on the disclosure report, but also took steps to conceal the existence of such defects when he attached newer wood beams to rotten and moldy wooden beams during a renovation process that allegedly occurred in March or April 2007. Moreover, the plaintiffs argue that count six is not barred by § 52-577 because the date of closing is the relevant date for statute of limitations purposes.
1
Extreme and Outrageous Conduct
" Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" Perez-Dickson v. Bridgeport, 304 Conn. 483, 527, 43 A.3d 69 (2012). " In order for the plaintiff to prevail in a case for liability . . . [alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." Id.
" [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Hartmann v. Gulf View Estates Homeowners Ass'n, Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005).
As consistently recognized by our appellate courts, in order to maintain a cognizable claim for intentional infliction of emotional distress, a plaintiff must meet a high threshold in order to satisfy the requirement that a defendant's conduct is sufficiently " extreme and outrageous." See, e.g., Tracy v. New Milford Public Schools, 101 Conn.App. 560, 567-70, 922 A.2d 280 (allegation that superiors conspired with one another to subject plaintiff to pattern of harassment, including a denial of a position, commencing disciplinary actions without proper investigation, and defamation was insufficient to meet " extreme and outrageous" standard), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). Although numerous courts, in varying contexts, have analyzed the " extreme and outrageous" conduct requirement for a claim of intentional infliction of emotional distress, few courts have assessed this requirement within the specific context of a transaction for real estate involving an alleged misrepresentation on a disclosure report and other allegedly deceitful conduct.
In Camerone v. Phillips, Superior Court, judicial district of New Haven, Docket No. CV03-483400-S, (January 17, 2007, DeMayo, J.), the plaintiffs purchased a residential property from the defendants and claimed that they were immediately confronted with water seepage problems in the house's lower levels. They claimed that the defendants had knowledge of water seepage problems with the property, but actively took measures to conceal such defects, failed to disclose the defects, and misrepresented the condition of the house. Evidence during the trial to the court revealed, inter alia : (a) that, six months before selling the property to the plaintiffs, the defendants had installed new carpeting on top of flooring that had water seepage and rot damage; (b) that the defendants installed wood supports that were " surrounded by water stained rotting wood"; and (c) that the defendants had installed " new" walls over areas of the house where longstanding rot and mold damage existed. The court found that " the defendants' actions in covering up the defects of which they had knowledge was outrageous. This intentional conduct caused [one of the plaintiff's] emotional distress and that conduct exceeded all bounds usually tolerated by decent society." (Internal quotation marks omitted.) Id.
In Keough v. Richard, Superior Court, judicial district of Hartford, Docket No. CV-09-502-6779-S, (January 7, 2010, Stengel, J.T.R.), the defendants completed a residential property disclosure report where they answered " no" to every question listed; the disclosure report contained questions as to whether the property had problems with roof leaks with damage to interior walls or ceilings, or with rot and water damage. Interpreting the plaintiffs' request for emotional distress damages as a claim for intentional infliction of emotional distress, the court ultimately distinguished Camerone, supra, Superior Court, Docket No. CV-03-483400-S finding that " the defendants . . . did not perform outrageous conduct, such as building a replacement wall, to conceal the problems from potential buyers, although there is some evidence that the defendants' builder . . . placed boards and sanded logs to hide water stains, some of which may have taken place before the defendants' occupancy." Rather, the decision in Keough ultimately focused on the defendants' alleged misrepresentations on the disclosure report: " In sum, by lying on their disclosure report, the defendants have subjected themselves to liability for fraud, but they have not engaged in conduct sufficient for the plaintiffs to state a claim for intentional infliction of emotional distress."
The facts alleged in the present case appear to fall somewhere in between the facts at issue in Camerone and Keough . In light of these cases, reasonable minds may differ as to whether the conduct is question is sufficiently " extreme and outrageous" to support a claim of intentional infliction of emotional distress. See, e.g., Perez-Dickson v. Bridgeport, supra, 304 Conn. 527 (" Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury"). For this reason, the defendant's motion for summary judgment on the ground that the alleged conduct of the defendant was not " extreme and outrageous" must be denied.
Paragraphs 23 and 24 in count one of the plaintiffs' third amended complaint, which are incorporated by reference in count six, provide that " [i]n renovating the Property, Defendant knew there was rot and water damage when he attached new wood beams alongside the old, rotten and moldy wood beams " and " [i]n renovating the Property, Defendant knew there were driveway problems when he trucked in materials to repair and/or replace the driveway that had washed away ." (Emphasis added.)
2
Statute of Limitations Pursuant to § 52-577
Alternatively, the defendant argues that count six is barred by § 52-577, the statute of limitations which governs claims for intentional infliction of emotional distress. LaBow v. Rubin, 95 Conn.App. 454, 469-70, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).
For the reasons previously discussed in addressing the motion for summary judgment as to count one, the plaintiffs commenced this action within the applicable statute of limitations. Therefore, the defendant's motion for summary judgment on the ground that count six is barred by the statute of limitations must be denied.
G
Count Seven--Negligent Infliction of Emotional Distress
The defendant argues that the plaintiffs' claim for negligent infliction of emotional distress set forth in count seven is predicated solely upon alleged damage to property. Thus, he argues that he is entitled to judgment as a matter of law because no cause of action exists for a claim of negligent infliction of emotional distress resulting solely from an alleged injury to property. Alternatively, the defendant argues that count seven is barred by § 52-584. In response, the plaintiffs assert that their claim for negligent infliction of emotional distress does not solely arise from their observance of damage to their property. Rather, the plaintiffs' claim is predicated on the emotional distress that they allegedly suffered and continue to suffer due to exposure to dangerous flooding at their home and the risk of future injury. Additionally, the plaintiffs argue that the relevant date for statute of limitations purposes is the date of closing.
In the alternative, the plaintiffs also argue that their negligent misrepresentation claim is not time barred because the defendant fraudulently concealed the plaintiffs' cause of action in violation of § 52-595.
1
Legal sufficiency
The thrust of the defendant's argument is that the law does not recognize a claim for negligent infliction of emotional distress predicated upon an alleged damage to property. Thus, the defendant has the burden of showing that count seven is legally insufficient and that any defects contained therein cannot be cured by repleading. See Ferri v. Powell-Ferri, supra, 317 Conn. 236-37.
To prevail on a claim of negligent infliction of emotional distress, the plaintiff is required to prove that " (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119, 126 (2003). " Thus, [t]he plaintiff must prove 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." Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010); see also Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
Although the defendant correctly asserts that numerous decisions from the Superior Court have found that claims for negligent infliction of emotional distress based solely on damage to property are not cognizable; see, e.g., Fasano v. Caprio, Superior Court, judicial district of New Haven, Docket No. CV-10-6014443-S (June 28, 2011, Woods, J.) (52 Conn. L. Rptr. 119, 121, *2) (granting motion to strike where claim was predicated on alleged theft of $48,000 worth of jewelry); Bernadt v. Leopold, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5010520-S, (December 29, 2009, Jennings, J.) (granting motion to strike where claim was predicated on damage to apartment due to burst pipes that caused plaintiffs to suffer money damage and loss of use and quiet enjoyment of their home); other decisions of the Superior Court have drawn a distinction between emotional distress arising solely from property damage and emotional distress arising from a separate and independent basis related to the damaged property. See Duffy v. Wallingford, 49 Conn.Supp. 109, 121-22, 862 A.2d 890 (2004) (motion for summary judgment denied as to plaintiffs' claims of physical discomfort and extreme emotional trauma resulting in sleeplessness and mental and emotional pain and suffering as well as property damage when defendant permitted raw sewage to flood their property); see also Moskowitz v. Edgerton, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013017-S (December 9, 2013, Adams, J.) (57 Conn. L. Rptr. 313, 315, *3) (motion to strike denied where plaintiffs alleged improperly installed or replaced heating causing massive amounts of heating oil to escape at their premises).
In the present case, the plaintiffs have not solely based their claims for negligent infliction of emotional distress on damage to property; rather, they allege property damage plus personal emotional and physical discomfort and fear of risk to their own health and the health of their children. In paragraph 13 of count one, which is incorporated by reference in count seven, the plaintiffs allege: " In August 2011, Plaintiffs experienced a severe flood where water surrounded the entire perimeter of the Property, washed away their driveway and closed all of Cherry Brook Road. Plaintiffs and their young children were stranded at the Property while water flowed on all sides of the Property and ultimately, Plaintiffs and their young children had to be evacuated from their home by fire fighters." (Emphasis added.) Paragraph 26 of count alleges: " Plaintiffs experienced anxiety, nervousness and anguish at the potential injury to themselves and their children as a result of the flooding in their home ." (Emphasis added.) Moreover, paragraph 27 of count seven provides: " In examining the Property for damage after the flooding, Plaintiff's discovery of mold and structural deficiencies in their home caused Plaintiffs emotional distress over the health hazards to themselves and their children and the risk of injury to themselves and their children should the Property be structurally unsound as a result of the history of water seepage, rot and water damage." (Emphasis added.)
Under the circumstances, the defendant has failed to carry his burden of showing that count seven is legally insufficient and that any defects contained therein cannot be cured by repleading. Ferri v. Powell-Ferri, supra, 317 Conn. 236-37. For this reason, the defendant's motion for summary judgment as to count seven on the ground of failure to state a legally sufficient claim must be denied.
2
Statute of Limitations Pursuant to § 52-584
The defendant alternatively argues that the plaintiffs' negligent infliction of emotional distress claim is time barred by operation of § 52-584. As previously discussed in addressing the motion for summary judgment as to count two, genuine issues of material fact remain as to when the plaintiffs should have discovered an " actionable harm" as that term has been interpreted by our case law. See Lagassey v. State, supra, 268 Conn. 748-49; General Statutes § 52-584. For this reason, the defendant's motion for summary judgment on the ground that count seven is time barred must be denied, and this court need not address the plaintiffs' alternative fraudulent concealment argument.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant's motion for summary judgment as to count five is hereby granted and as to counts one, two, three, four, six, and seven, is hereby denied.