Opinion
No. CV05-4013892
January 26, 2007
Memorandum of Decision
By an amended substitute complaint, the plaintiff, Karen Belanger, brings this action against Ann I. Maffucci, alleging four counts, including fraudulent misrepresentaton, negligent misrepresentation, breach of contract, and breach of the covenant of good faith and fair dealing, claiming damages as a result. In her answer, the defendant has denied the substance of these allegations and claimed the special defenses of contributory negligence, waiver/release and estoppel. The case was tried to the court on August 22, 2006, after which the court accepted and reviewed briefs filed by the parties.
The court makes the following findings of facts by clear and convincing evidence. In February 2005, the plaintiff was seeking to purchase a new home and became interested in a home on 95 Stillwold Drive, Wethersfield, which had come on the market. After she looked at the home and reviewed disclosure forms which were signed by the defendant on February 17, 2005, the plaintiff decided to make an offer on the home. After a couple of days of negotiation, the plaintiff and the defendant entered into a contract on March 14, 2005 whereby the plaintiff would buy the home from the defendant for $269,500 subject to an independent home inspection. The plaintiff received and signed the home inspection report on March 17, 2005, which indicated, among other things, issues with the grading, no visible damage to the gutters, and a basement "very congested" with clutter. As to the basement, the inspector specifically recommended that the plaintiff re-inspect the area when empty. On March 30, 2005, the original date for the closing, plaintiff conducted a walk-through inspection, at which point the house had been emptied. Although the upstairs and main floor looked fine, when the plaintiff went to the basement, she found the carpet soaked and pools of standing water on the floor. Her realtor immediately called her attorney, and they went directly to his office, where the defendant's attorney was present for the closing. The defendant was not present.
As a result of finding water in the basement, the plaintiff then called her brother-in-law, Jim Sheehy, who had been a former town engineer for the town of Wethersfield. He agreed to take a look at the basement and observed water seeping in from the west wall of the house, through metal dog ties in the concrete foundation of the wall. According to Mr. Sheehy, the flow of water was enough to leave an inch to several inches of water over a period of time. As a result, he recommended that a curtain drain be installed and some re-grading done on the property. Based on the defendant's representations on the disclosure form, the plaintiff believed this was a one-time occurrence and that these measures would address the flooding issue. As such, the plaintiff negotiated for a $2,500 credit toward the curtain drain in addition to the $3,500 credit for all other previously negotiated inspection issues. As a result of these negotiations, the parties closed on the house on Friday, April 1, 2005, two days after the originally scheduled closing. The defendant was again not present on the date of the actual closing.
On April 5, 2004, the plaintiff asked a contractor who had been doing work on her garage to look at her basement to check out any damage from the flood; he reported that it appeared that the plaintiff had a significant mold problem in her basement. As such, the plaintiff called upon Dr. Kathleen Feldman, a local expert on mold, to test the area to determine how extensive the mold was. Two days later, Dr. Feldman conducted various tests and reported to the plaintiff that she needed to move out immediately because the mold was a health hazard.
Dr. Feldman, who has a Ph.D in microbiology, is a certified microbial consultant/industrial hygienist specializing in indoor air quality assessments. Following her testing of the home, she issued a report in which she opined that throughout the basement, there was water damage to the lower section of most of the walls and visible mold growth on many of the walls. The amount of mold growth on the surface areas, which ranged from four inches to up to three feet high in some areas, was such that she believed it "in excess of what could have happened from flooding over the last week." She also reported that the predominant type of mold found on basement surfaces was a type which "prefers to grow under very high water saturation conditions indicating flooding conditions" and does not grow well in moisture resulting from simply high relative humidity. She noted that delamination and rotting of the wall paneling in the basement as well as the presence of rotting wood under the siding of the southwest corner of the house indicated long-term problems with drainage in that area of the home. As a result, she concluded that such evidence indicates that flooding had occurred in the home over a long duration, perhaps years.
As a result of the presence and degree of mold she found, Dr. Feldman recommended that the entire basement be gutted, with the walls, insulation and ceiling tiles removed and any rotted studs be removed and replaced. She recommended that siding be replaced, the HVAC system cleaned and disinfected, and based on elevated airborne mold spores, that the first and second floor of the home be HEPA air scrubbed and vacuumed.
As such, on April 8, 2005, the plaintiff had the area excavated, a curtain drain installed and the property re-graded on the west side of the home, which according to Mr. Sheehy, corrected the drainage issues coming from that part of the home. In the meantime, Dr. Feldman's recommendations with respect to gutting the basement and other remediation efforts were then implemented. On April 25, 2005, however, it began to rain again and the plaintiff discovered more flooding in her home. She once again called Mr. Sheehy, who found water "cascading" from a cellar window on the northwest portion of the house. In this instance of flooding, Mr. Sheehy observed that a rain leader from the gutters of the home was feeding water into the cellar window well which was filled to the top with silt. It was apparent to Mr. Sheehy that over the years, silt had washed in from the downspout; in fact, he noted that there was a small tree that had grown in the silt in the window well. In his opinion, this particular source of water could enter the home without an owner knowing prior to the gutting of the basement because the sheetrock, being porous, likely acted like a sponge. Although Mr. Sheehy was convinced that the water had been coming through the window for many years, he assumed it was "a step no one realized . . . or else they would have addressed it." At the same time, he described the discharge of water from this subsequent source as being twice the amount that he observed coming from the west wall, given the heavy rains, and he specifically described the water cascading "like a waterfall."
This court credits Mr. Sheehy's testimony in all respects, except to the extent that he assumed that an owner might not know about moisture or water in the basement, based simply on his understanding of the properties of sheetrock and his assumption that an owner would have done something about a problem as significant as what he had found. While this source of water entering the home was apparently not obvious until the basement was gutted, the home nevertheless manifested serious problems with drainage. Indeed, the court finds that there is overwhelming circumstantial evidence that flooding which was apparent on the day of the closing and again on April 25, 2005 could not possibly be the first times that obvious flooding had occurred in the forty years occupied by the previous owner.
The court has heard evidence of two distinct sources of water flowing into the basement, particularly water cascading like a waterfall through a window well filled with silt from which a little tree had rooted. The court has reviewed photographs of the basement and heard the compelling testimony of Dr. Feldman with respect to the basis of her opinion that flooding had occurred over a long duration and certainly before the flooding that occurred on March 30, 2005.
In her testimony before this court, the defendant presented confusing evidence and, in fact, entirely lacked credibility. In the residential property condition disclosure report which she signed on February 17, 2005, the defendant responded to the question "BASEMENT Water/Seepage/Dampness? Explain amount, frequency and location" by noting that there was merely "dampness — perimeter (partial) first tine in 40 years." On direct examination, she testified to the following:
Q: All right. Now can you explain to me, when did you notice dampness in your basement?
A: It was so seldom. I really didn't pay much attention. Very little. My cellar was always warm, dry, comfortable. I had furniture down there.
Q: Okay. But did you occasionally have some dampness?
A: Occasionally, sure.
Q: Okay. And how far back do you remember noticing dampness in your basement?
A: I can't tell you. I don't really know. It wasn't that often. It was very few times that I thought it was damp in the cellar, but that's it.
Q: Okay. Well, when you wrote on the form where it says, "first time in 40 years," what are you referring to in terms of —
A: I was referring to a flood.
Q: flood when?
A: The day of the closing, or something like that. I don't know. Where was it? I don't know. I guess this wasn't the one. I did refer as a flood. I may not have. I don't know.
It was most apparent to this court that in her original disclosure and in her testimony to this court, the defendant was neither forthcoming nor candid. She subsequently denied she had any flooding prior to the closing. She then characterized her statement that she had dampness for the "first time in 40 years" as a mistake, saying "it wasn't the first time in 40 years that there was a little dampness." In her testimony, she acknowledged that she had dampness "on and off" for a period of years. Based on her testimony and other evidence, the court finds that the defendant's written statement, conveying the impression that merely dampness occurred for the first time in forty years, was a willful misrepresentation of more serious problems with drainage. The degree of water damage done to the walls and paneling as evidenced by delamination and rot as well as significant amounts of mold and water cascading in the basement is clear and convincing circumstantial evidence that she had knowingly failed to disclose a serious problem with water drainage to her basement. Moreover, the defendant's testimony regarding her reaction to the news of flooding on the day of the closing was also telling to this court. The court heard no evidence that she was initially shocked or dismayed by what would have been, if her testimony is to be believed, the first time in forty years that her house had flooded. Instead, she testified that she was "very nervous about this" and in fact told her real estate agent that she wanted to cancel the closing.
Moreover, this court cannot reconcile the defendant's testimony with the invoice she received for gutter repair. The defendant claims that the first time she learned of flooding in forty years was on March 30, 2005, the original day of the closing. On that date, she had her daughter call a cleaning service and a gutter repair service to address and correct the flooding problems. When shown the invoice from the gutter repair service, the defendant very clearly testified that they called the service because they thought the water problem was due to gutters that needed to be repaired. She testified that they came in right away, welded the gutters and as a result, they thought that would take care of the flooding. She dramatically changed her testimony, however, when confronted with the date of the invoice.
The date of the invoice reads March 29, 2005, which was the day before the closing; it is marked as being paid on March 30, 2005. Combined with her initial testimony with respect to why she had the gutters repaired in the first place, the invoice indicates that she in fact knew about this most recent flooding as early as the day before the closing. When confronted with this inconsistency, the defendant then changed her testimony and unconvincingly testified that the gutter was being fixed on March 29, 2005 simply because her husband had noticed it was broken. The court will make additional findings of facts as necessary.
Count 1 — Fraudulent Misrepresentation
Our courts have long held that "[t]he essential elements of an action in fraud . . . 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 injury." Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981). "The party asserting such a cause of action must prove the existence of the first three of these elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as `clear and satisfactory' or `clear, precise and unequivocal.'" Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995). The intent to defraud involves a state of mind and must usually be proven by circumstantial evidence. Busker v. United Illuminating Co., 156 Conn. 456, 459, 242 A.2d. 708 (1968).
Here the court finds by clear and convincing evidence that the defendant represented on February 18, 2005 to the plaintiff that she had dampness around the perimeter of the basement for the first time in forty years. The defendant further represented on that same date in the mold and mold-forming condition disclosure form that she had "no knowledge of the presence of mold or conditions that can lead to the growth of mold (excessive humidity, water leakage, drainage problems, flooding, etc.)" (Emphasis added.) When the defendant testified about her responses to the disclosure form, she claimed she made a mistake in her representations and that in fact she would have dampness in the basement occasionally, but that "it was very few times" and that her cellar was "always warm, dry and comfortable."
The court further finds that the presence of significant amounts of mold, water damage, delamination of wood paneling and rotted wood as well as the testimony of Dr. Feldman and the observations of Mr. Sheehy regarding the sources and degree of water incursion are clear and convincing evidence that the defendant falsely represented the degree to which her home had suffered serious and long-term problems with water drainage. The court particularly relies on Dr. Feldman's testimony with respect to her opinion that flooding had occurred over a long duration and the defendant's own testimony in which she equivocated about what she meant in her responses to the disclosure forms. As such, this court finds that the plaintiff has established her burden with respect to showing that the defendant made a false representation as a statement of fact, that the defendant knew these statements were untrue, and that she made these statements so that the plaintiff would purchase her home, unaware of the true extent of water problems in the home. The plaintiff has further established that she relied on these statements, evidenced by the mold and mold-forming condition disclosure form which specifically notes the fact that a potential buyer will rely on the owner's representations. Moreover, the plaintiff's testimony also establishes that she relied on this information when she believed that the flood during the closing was a one-time event, and thus renegotiated the terms of their agreement to address what she believed was the cause of one time incident of flooding. Assured that she would close on the house, the plaintiff subsequently discovered significant amounts of mold requiring the gutting and rebuilding of the basement and other remediation efforts before her home was habitable. As such, the plaintiff has proven that she has suffered injury as a result of the defendant's misrepresentation.
The defendant claims that the plaintiff has not met her burden that she justifiably relied on the owner's representations. Citing Giametti v. Inspections, Inc., 76 Conn.App. 352, 824 A.2d 1 (2003), the defendant essentially claims that the plaintiff cannot justifiably rely on representations made in the mandatory disclosure reports when a plaintiff fails to ensure that her home is adequately inspected. In Giametti, however, the Appellate Court reversed the trial court's finding for the plaintiff based on negligent misrepresentation given the lack of any evidentiary basis for a finding that the plaintiff justifiably relied on the defendant's misrepresentations. Id., 365-66. As such, Giametti simply does not control this case to the extent that this court has found that the defendant fraudulently misrepresented the condition of her home. See Dockter v. Slowik, 91 Conn.App. 448, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005) (court rejected the defendant's claim that Giametti controls in cases of fraudulent misrepresentation).
Moreover, the plaintiff's use of a home inspection does not preclude her ability to show she substantially relied on the misrepresentation as well. On this specific issue, this court is persuaded by the thoughtful analysis of the court in Mehler and Russell v. Stanley, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 97 0081533 (January 4, 2001, Frazzini, J.) (28 Conn. L. Rptr. 595). In denying a motion for summary judgment, the court rejected the defendant's claim that, as a matter of law, the plaintiff's use of an independent home inspection precludes the plaintiff from claiming reliance on misrepresentations by the seller as to the condition of the premises. Like the court in Mehler and Russell, this court finds persuasive 3 Restatement (Second) Torts § 547, comment (a) (1977):
It is not enough to relieve the maker of a fraudulent misrepresentation from liability that the person to whom it is made makes an investigation of its truth. It is only when he relies upon his investigation and does not rely upon the false statement that he cannot recover. Whether he does rely upon the one or the other or in substantial part upon both . . . is a question of fact and is for the jury to determine, unless the evidence clearly indicates only one conclusion.
Ordinarily one who makes an investigation will be taken to rely upon it alone as to all facts disclosed to him and all facts that must have been obvious to him in the course of it. Thus one who has fully inspected a house before buying it ordinarily cannot claim that he was deceived by a misrepresentation of the condition of the ceilings that was apparent to any one taking the trouble to look at them. On the other hand, if the condition is a latent one, which the inspection or investigation could not reasonably be expected to discover, the recipient may still be relying upon the representation as well as the investigation . . . Particularly when the investigation produces results that tend to confirm the representation but are still somewhat inconclusive, it may be found that the recipient has relied upon both the investigation and the representation and that the latter has played a substantial part in inducing him to take action.
Id.
Notably, the inspection report specifically exempts mold as one of the items which was not the subject of inspection, noting that "[m]any homes have excessive moisture issues which might lead to mold, but the ability to detect the presence of mold is beyond the scope of this home inspection. If Client is concerned about the presence of mold, it is strongly recommended that a qualified mold inspector be consulted before closing." This court finds that the defendant's misrepresentations in the disclosure forms induced the plaintiff to believe that the flooding on the day of the original closing was a one-time event and, as such, resulted in renegotiations to address the source of flooding that was identified at that time. What the plaintiff did not bargain for was the degree to which flooding and water drainage problems were long-term problems in the house such that she would also have a significant and serious mold problem requiring remediation.
The court is aware that microscopic airborne mold and significant amounts of surface mold were not visible to either the defendant or to the plaintiff. Nevertheless, the defendant's protestations that she knew nothing about mold are unavailing to the extent that the disclosure forms mandate disclosure of the "conditions which might lead to mold" and not just her knowledge of mold. Indeed, the very latency of moldy conditions underscores the significance of candor in disclosure forms filled out by the defendant and, therefore, the degree to which a buyer necessarily relies on representations by a seller. As our courts have observed, "once a vendor assumed to speak, `he must make a full and fair disclosure as to the matters about which he assumes to speak.'" Wedig v. Brinster, 1 Conn.App. 123, 130, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984), citing Franchey v. Hannes, 152 Conn. 372, 379, 207 A.2d 268 (1965). Moreover, "[w]here there is misrepresentation, the fault of the victim in failing to discover the truth does not preclude relief unless it is so extreme as to amount to a failure to act in good faith and in accordance with reasonable standards of fair dealing." Pacelli Brothers Transportation, Inc. v. Pacelli, 189 Conn. 401, 409, 456 A.2d 325 (1983). This court finds in favor of the plaintiff with respect to count one.
Count 2 — Negligent Misrepresentation
"[A]n action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation." Giametti v. Inspections, Inc., supra, 76 Conn.App. 364. "Our Supreme Court `has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." Id., 363.
Although the court has already found that the defendant wilfully and knowingly misrepresented the conditions of her home in the disclosure forms, this court also finds that as the prior owner for forty years, she knew and should have known that she had a water drainage problem in her basement that could result in mold. Moreover, this court has already found that the plaintiff was induced by the defendant's misrepresentations to renegotiate the terms of the sale to account for what she believed was a one-time incident of flooding and thus justifiably relied on those misrepresentations. While the defendant claims that the plaintiff was herself contributorily negligent in failing to have an inspection for mold prior to the closing, the court is not persuaded that this duty was triggered by what the plaintiff reasonably believed was a one-time incident of flooding.
As such, the court finds for the plaintiff on this count.
Count 3 — Breach of Contract
"`The elements of a breach of contract are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.' Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420." Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). Breach of contract is to be proven by the preponderance of the evidence. Waicunas v. Macari, 151 Conn. 134, 137, 193 A.2d 709 (1963); Daley v. Wesleyan University, 63 Conn.App. 119, 131-32, 772 A.2d 725 (2001), cert. denied, 256 Conn. 930, 776 A.2d 1145. See Colliers, Dow Condon, Inc. v. Schwartz, 77 Conn.App. 462, 823 A.2d 438 (2003). "Where . . . there is a clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law." (Internal quotation marks omitted.) Santana v. Harford, 94 Conn.App. 445, 463, 894 A.2d 307, cert. granted on other grounds, 279 Conn. 901, 901 A.2d 1223 (2006).
"It is well settled that we interpret contract language in accordance with a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 286, 757 A.2d 526 (2000).
"Whether there was a breach of contract is ordinarily a question of fact . . . Further, where a breach of contract is alleged, [t]he amount, if any, of the [defendant's] actual damages is a question of fact . . . [T]he general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed . . ." (Citations omitted; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 338, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).
This court finds, by a preponderance of the evidence, that the plaintiff purchased the defendant's home for $269,500 pursuant to an agreement reached by both parties, which included a $3,500 allowance for previously negotiated inspection issues and $2,500 allowance for a curtain drain. The curtain drain, however, was to address what the plaintiff understood to be one instance of flooding, based on representations the defendant made in the disclosure forms. Relying on those representations including the defendant's claim that she had no knowledge of any conditions leading to the growth of mold, the plaintiff purchased a home which ultimately tested positive for significant amounts of mold, requiring remediation in order to make it habitable. Given the court's earlier finding that the defendant knowingly withheld information regarding flooding and significant problems with water drainage, the court finds for the plaintiff on the breach of contract claim.
The plaintiff has also claimed a breach of contract based on the defendant's failure to leave certain cleaning equipment for the pool as well as an electric fence. The court cannot find that the defendant is in breach of contract with respect to the pool equipment, since the plaintiff received some pool equipment and it is not clear from the contract that the parties were in agreement that the specific pool equipment at issue was part and parcel of the contract. With respect to the electric fence, however, the court finds for the plaintiff. The evidence clearly demonstrates that there was an agreement for the defendant to leave an electric fence on the property. After the property was conveyed, the plaintiff found that the box controlling the electric fence was removed. As such, the plaintiff has met her burden that the defendant is in breach of contract with respect to the electric fence.
Count 4 — Breach of Covenant of Good Faith and Fair Dealing
With respect to the plaintiff's allegation that the defendant breached the implied covenant of good faith and fair dealing, "[i]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984); see also 2 Restatement (Second), Contracts § 205 (1979) ([e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement)." (Internal quotation marks omitted.) Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). In other words, every contract caries an implied duty "requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 564, 733 A.2d 197 (1999) (Callahan, C.J., dissenting). "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." (Internal quotation marks omitted.) Celentano v. Oaks Condominium Assn., 265 Conn. 579, 617, 830 A.2d 164 (2003).
"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), citing Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996). "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, 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, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).
This court, having already found fraud and breach of contract on the part of the defendant, also finds that the defendant acted in bad faith by misleading the plaintiff into contracting with her. As such, the court finds for the plaintiff as to this count as well.
Spoliation of Evidence
The defendant claims that the plaintiff cannot prevail based on her "spoliation of the evidence." Specifically, she claims that the plaintiff's gutting of the property, including discarded carpeting, paneling, structural members, ceiling tiles, etc., precludes this court from finding in favor of the plaintiff. According to the defendant, an examination of such evidence is necessary to establish that the conditions giving rise to mold pre-existed the sale. This court, however, disagrees.
This court has already found, based on all of the evidence, the above grounds for fraudulent misrepresentation, including the amount of water flooding the basement, how it flowed into the basement, the testimony of Dr. Feldman and Mr. Sheehy as well as the manner and testimony of the defendant. As the Supreme Court held in Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996), the reversal of the trial court's grant of summary judgment based simply on spoliation of evidence was error, to the extent that the defendant failed to show that the plaintiff could not prove his case without such evidence. Here the defendant has not shown that the discarded evidence was necessary to prove the plaintiff's case. Moreover, the defendant has failed to show that she acted with due diligence regarding the spoliated evidence or that the plaintiff was on notice that the evidence should be preserved. Id. See also Surrells v. Belinkie, 95 Conn.App. 764, 898 A.2d 232 (2006). Indeed, the plaintiff testified that she attempted to talk to the defendant about the mold problem prior to the basement being gutted, but the defendant responded that she planned to call her lawyer and walked away. In any event, this court is not required to draw an adverse inference that such evidence would be unfavorable to the plaintiff and thus declines to do so. Beers v. Bayliner Marine Corp., supra, 236 Conn. 777-79.
Waiver
The defendant has also claimed that the plaintiff waived any right to recover damages relating to inspection issues based on the parties' negotiation of $3,500 for "all inspection issues" and the $2,500 for the curtain drain, "Waiver is the intentional relinquishment of a known right." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992). "Waiver need not be express, `but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.'" Id., 252. The court cannot find that the plaintiff waived her right to recover based on the above described negotiations. The evidence clearly demonstrates that the plaintiff sought to address a one-time incident with flooding and, as such, did not waive her right to claim damages for the cost of mold remediation.
Estoppel
"The defense of estoppel must be supported by proof of two essential elements: (1) the party against whom estoppel is claimed must be shown to have done or said something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and (2) the other party must be shown to have changed its position in reliance on those facts; thereby incurring some injury . . . An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party . . . The party claiming estoppel has the burden of proof, and whether it has met that burden of proof in a particular case is an issue of fact." Ridgefield v. Eppoliti Realty Co., supra, 71 Conn.App. 337.
Having reviewed the defendant's claim, this court is not persuaded that the plaintiff engaged in misleading conduct resulting in prejudice to the defendant. The court rejects this defense.
Damages
"Damages are an essential element of the plaintiff's proof before he is entitled to recover . . . They must be proved with reasonable certainty." (Internal quotation marks omitted.) Falco v. James Peter Associates, Inc., 165 Conn. 442, 445, 335 A.2d 301 (1973), citing Braithwaite v. Lee, 125 Conn. 10, 14, 2 A.2d 380 (1938). "The general rule of contract damages is that the injured party should be placed in a position he would have been in had the contract been fully performed." Spera v. Audiotape Corporation, 1 Conn.App. 629, 633, 474 A.2d 481 (1984). "The measure for such injury to real property is the diminution in its value." Falco v. James Peter Associates, Inc., supra, 165 Conn. 446. "It is, however, well established that such diminution in value may be established by the cost of repairing the damage, provided . . . that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged." Whitman Hotel Corp. v. Elliot Watrous Engineering Co., 137 Conn. 562, 573, 79 A.2d 591 (1951). See also Ferri v. Pyramid Construction Co., 186 Conn. 682, 689, 443 A.2d 478 (1982); Mattegat v. Klopfenstein, 50 Conn.App. 97, 106, 717 A.2d 276 (1998), cert. denied, 247 Conn. 922, 722 A.2d 810.
Since "[t]he cost of repairs . . . is a proxy for diminution in value caused by damage to property," and "[they] are, in effect, alternative measures of damages, the plaintiff need not introduce evidence of both diminution in value and cost of repairs." Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59-60, 717 A.2d 77 (1998). The defendant asserts, however, that the plaintiff may not simply submit evidence of the cost of repairs, but that it is also the plaintiff's burden to establish that such costs do not exceed the former value of the property or enhance the value of the property before it was damaged. The court has reviewed the authority cited by the plaintiff for this proposition but is not persuaded. See Ferri v. Pyramid Construction Co., supra, 186 Conn. 689 (court rejected the defendant's claim that the court was required to measure damages by using cost of reparations as opposed to evidence as to the property's diminution of value, noting that no other evidence, aside from the defendant's expert was presented by either party regarding the cost or efficacy of the proposed repairs).
Indeed, as to the plaintiff's burden, the Ferri court noted that the plaintiff must present "evidence which affords a reasonable basis for measuring her loss," adding that while mathematical exactitude in the proof of damages is often impossible . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." (Citations omitted; internal quotation marks omitted.) Id., 691.
Moreover, the court more recently in Willow Springs upheld the award of damages to the plaintiffs based on the cost of repairs, evidently in the absence of evidence from either party that such repairs exceeded the purchase price of the property being repaired. Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 60. Significantly, the Willow Springs court noted that allowing a plaintiff to use the actual cost of repairs as evidence of damages was particularly appropriate where the trier of fact finds fraud. Id., 62.
The defendant has argued that even if this court finds that it is the defendant's burden to show that the repairs enhance the value of the property, it has done so by virtue of their claim that the plaintiff has a new, partially finished basement, as opposed to a 1970s basement. The court in Whitman Hotel Corp. v. Elliott Watrous Engineering Co., supra, 137 Conn. 562, however, addressed this exact claim by the defendant, who also argued that recovery of the full cost of repairs put the plaintiff in a better position than it was in before the damage was done. Rejecting the defendant's claim, the court upheld damages premised on the cost of repairs where such repairs would restore the property to its original condition of usefulness. Id., 574. As the court noted, "[f]rom the very nature of the situation, the amount of loss cannot be proved with exactitude and all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate." (Internal quotation marks omitted.) Id., citing Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928).
It is also significant to the court that the plaintiff is seeking only the money damages she has actually paid out. With respect to Exhibit 9 and Exhibit 12, the plaintiff agreed at trial that she was claiming only the monies she has paid out, and not the full amount sought by the contractors. The work itemized by the contractors was not completed because the plaintiff's funds were depleted. Thus, certain work such as the replacement of paneling on the finished part of the basement has never been done. As such, the court cannot conclude that the plaintiff has even fully repaired and restored the basement. Given this and the absence of any credible evidence that the repairs were unreasonable or dramatically increased the value of the property, the court rejects the defendant's claim with respect to the damages. See Gerrety Co. v. Palmieri, supra, 11 Conn.App. 230.
With these principles in mind, the court awards the cost of remediation and repairs resulting from the presence of mold, and any associated costs, including the cost of repairs relating to the second flood, as well as the cost for the electric fence. With respect to the repairs relating to the second flood, the source of which was a latent condition not amenable to a visual inspection, the court finds that they are also part and parcel of the repairs necessary to address the severe problem of mold in the home. As such, the court awards to the plaintiff damages in the amount of $20,881.82 and reasonable attorneys fees and court costs.
It is SO ORDERED.