Opinion
No. DBD-CV-08-6000936S
June 9, 2010
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The parties in this action are the plaintiffs, Tamas Biro and Vilmos Havasi, and the defendants, Victor Matz and Ingrid Luning. The plaintiffs brought the present action on November 21, 2008, and thereafter filed a revised complaint on February 27, 2009.
The plaintiffs' claims arise out the purchase of a commercial piece of property known as 95 Golden Hill Road ("the Premises"). On July 11, 2006, the plaintiffs contracted to purchase the Premises from the defendants and on or about October 2, 2006, said purchase took place. On or about February 9, 2008, the plaintiffs received an offer to purchase the Premises and subsequently entered into a contract of sale. Thereafter the plaintiffs learned that an addition made to the Premises in 1980 did not have a certificate of occupancy and claim that they lost the sale due to such defect. The plaintiffs allege that the defendants knew or should have known about the lack of a certificate of occupancy and other defects to the property.
The plaintiffs have asserted five counts against the defendants in their complaint: (1) breach of contract; (2) negligent misrepresentation; (3) intentional misrepresentation; (4) fraudulent inducement; and (5) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, et seq. On July 16, 2009, the defendants filed their answer and special defenses to the plaintiffs' complaint. On February 2, 2010, the defendants moved for summary judgment on all five counts of the plaintiffs' complaint and the plaintiffs filed papers in opposition.
On March 15, 2010, oral argument was heard on the defendants' motion for summary judgment. The plaintiffs' counsel requested the opportunity to produce relevant portions of the deposition transcript of defendant Victor Matz which occurred on March 7, 2010, and to respond to a case cited by the defendants. This court granted both of the plaintiffs' requests. On March 22, 2010, the plaintiffs filed a supplemental memorandum and with the permission of the court, the defendants filed a reply memorandum on April 1, 2010.
II FACTUAL BACKGROUND
The defendants are the former owners of a piece of commercial property located at 95 Golden Hill Road, Danbury, Connecticut. On or about July 11, 2006, the plaintiffs and the defendants executed a contract for the plaintiffs' purchase of the Premises in "as is" condition and "with all faults." In the contract that was executed by the parties, it contained a provision that stated in relevant part: "(a) the Buyer represents to the Seller that he has examined to the full extent desired, the Premises, and further represents that neither the Seller nor any representative of the Seller has made any representation or promise upon which the Buyer has relied concerning any aspect of this transaction, including but not limited to, the condition, quality, use or value of the Premises. (b) The Premises is being sold in an "As Is" condition and "With All Faults" as of the date of this Agreement and Closing. Except as expressly set forth in this Agreement, no representations or warranties have been made or are made and no responsibility has been or is assumed by Seller . . . as to the condition or repair of the Premises . . ." There is no dispute in this case that the defendants afforded the plaintiffs an opportunity to fully inspect the Premises prior to closing.
Paragraph 8 of the contract provided in relevant part: "In addition to the exceptions to tile mentioned in Schedule A, the Premises will be conveyed subject to: (a) any restrictions or limitations imposed or to be imposed by governmental authority, including zoning and planning rules and regulations of the City or Town, and region or district, if any, which the Premises are situated." (Plaintiff's Mem. in Opposition to Motion for Summary Judgment, Exhibit A.)
According to the deposition testimony of defendant Victor Matz, the original portion of the Premises was constructed in 1971 and an addition was added in 1980 to give the building more warehouse space. (Matz Deposition Tr. 10-11.) The defendants used a contractor to do the construction of the addition and the defendant Victor Matz testified in his deposition that he believed the contractor hired to construct the addition would provide a certificate of occupancy based on the construction contract's warranties language which provided in relevant part: "Warranties: All applicable local, state, national codes and good engineering practice . . ." (Matz Dep. Tr. 19-20.) The defendant Victor Matz also testified in his deposition that he had found a receipt from the City of Danbury for a certificate of occupancy which he believed was indicative of receipt of a certificate of occupancy. (Matz Dep. Tr. 15.)
The defendant Victor Matz was also asked questions during his deposition about a title affidavit from Fidelity National Title Insurance Company of New York. (Matz Dep. Tr. p. 22.) The Title Affidavit was prepared by the plaintiffs' counsel and signed by the defendants on October 2, 2006. The Fidelity Title Affidavit represented that "there have been no additional buildings constructed, or additions added to existing buildings, on the property within the past three (3) years." (Plaintiff's Mem. in Opposition to Motion for Summary Judgment, Ex. B.) In the section of the Fidelity Title Affidavit entitled "Survey Update" it provided in relevant part: "I/We have examined a certain survey of the property made by _______ dated ______ and entitled "______________." The spaces in this section were not filled in by the plaintiffs' counsel, who prepared the Fidelity Title Affidavit, nor by the defendants. The Fidelity Title Affidavit was executed at the closing and provided to the plaintiffs with the aforementioned sections left blank. There is no dispute in this action as to this sequence of events and apparently no objection was raised at closing as to the blanks in the Fidelity Title Affidavit. No evidence was provided either in support of this motion or in opposition that a survey of the Premises ever existed.
The plaintiff Vilmos Havasi claims in his affidavit in opposition to this motion for summary judgment that the plaintiffs relied on affirmative representations made in the Fidelity Title Affidavit by the defendants and purchased the Premises. (Plaintiff's Mem. in Opposition to Motion for Summary Judgment, Ex. D Affidavit of Vilmos Havasi, ¶¶ 6, 7.) In his affidavit, the plaintiff Vilmos Havasi does not state which affirmative representations made in the Fidelity Title Affidavit he relied upon in purchasing the Premises. However, in their complaint the plaintiffs allege that they relied on the written representations in paragraph eight of the contract and in their memorandum in opposition to motion for summary judgment, the plaintiffs claim they relied upon the statements made in the survey update section of the Fidelity Title Affidavit.
On or about February 9, 2008, the plaintiffs received an offer to purchase the property and subsequently entered into a contract of sale with RJ Electrical Contractors, LLC ("RJ Electrical") for the Premises for $1,400,000 on April 27, 2008. (Plaintiff's Mem. in Opposition Motion for Summary Judgment, Affidavit of Vilmos Havasi, ¶ 8; Defendants' Mem. in Support of Motion for Summary Judgment, Ex. D Affidavit of Richard Gustavson ¶ 5). The plaintiff Vilmos Havasi alleges that the owner of RJ Electrical informed him that he had gone to the local building department to discuss his proposed usage of the Premises and had ascertained that there was no certificate of occupancy on file for the addition constructed to the building. (Plaintiff's Mem. in Opposition Motion for Summary Judgment, Affidavit of Vilmos Havasi, ¶ 9. Mr. Havasi also alleges that RJ Electrical informed his counsel that it would withdraw from the real estate deal unless it had a certificate of occupancy. ( Id., ¶ 11.)
However, in an affidavit submitted by RJ Electrical in support of the defendants' motion for summary judgment, the owner of RJ Electrical stated that in conducting their due diligence of the Premises he learned from the City of Danbury building department that there was no certificate of occupancy for the addition on the Premises. (Defendants' Mem. in Support of Motion for Summary Judgment, Ex. D Affidavit of Richard Gustavson, ¶ 6.) He also stated that he advised the plaintiffs of that fact, that the plaintiffs refused to pull the permits to get a certificate of occupancy for the building and take the steps necessary to obtain the certificate of occupancy. ( Id., ¶ 7.) Mr. Gustavson further stated in his affidavit that he pulled the permits to get a certificate of occupancy for the building and also applied for a mortgage for the purchase of the premises. ( Id., ¶ 8.) He stated that the mortgage bank's appraiser concluded the value of the Premises was $1,000,000 before the Premises' repairs began and that because of the appraisal, he then offered the plaintiffs $1,000,000 for the property. ( Id., ¶ 10.) Mr. Gustavson stated in his affidavit that the plaintiffs rejected that offer, that the reason RJ Electrical did not purchase the premises was because the Premises appraised for only $1,000,000 and that the appraised value did not justify RJ Electrical's purchase of the Premises for $1,400,000. ( Id., ¶¶ 11, 12.) He finally stated in his affidavit that RJ Electrical was not deterred from purchasing the Premises in any way by the fact that the Premises did not have a certificate of occupancy for the Premises. ( Id., ¶¶ 12, 13.)
III DISCUSSION A. Summary Judgment
The defendants have moved for summary judgment on all of the counts of the plaintiff's complaint. "Practice Book § 17-49, provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of a case . . ." (Citations omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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 material fact, which, under applicable principles of substantive law, entitle him to 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 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]."(Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
A. Breach of Contract
The defendants have first moved for summary judgment on the First Count of the plaintiffs' Revised Complaint which alleges a breach of paragraph eight of the July 11, 2006 contract between the parties for the purchase of the Premises. This paragraph states in relevant part that the defendants agreed to convey the property "subject to any restrictions or limitations imposed or to be imposed by governmental authority, including the zoning and planning rules and regulations of the City or Town, and region or district, if any, in which the Premises is situated. Provided the same are not being violated by the subject premises."
The defendants contend that the terms and conditions of paragraph eight of the contract, which the plaintiffs allege the defendants breached, did not survive the closing and the delivery of the deed. The plaintiffs do not dispute that the closing took place and the deed was delivered to them. The defendants also contend that because the terms of the contract merged into the deed, it replaced and superseded the underlying terms of the contract upon the plaintiff's acceptance of the deed. Thus, the defendants argue that the plaintiffs have no breach of contract claim premised on paragraph eight of the contract because the terms of such paragraph merged into the deed when the plaintiffs took title to the Premises.
In support of their position, the defendants cite to Mongillo v. Commissioner, 214 Conn. 225, 231, 571 A.2d 112 (1990), for the proposition that "the terms of the deed would automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights." In general, "acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract, and all stipulations contained therein . . . are merged in the deed although omitted therefrom." (Internal quotation marks omitted.) Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985). The defendants also cite to numerous cases in which summary judgment was granted based on the merger doctrine where the plaintiff claimed that the defendant breached the purchase and sales agreement. Russell v. Ambassador Property Group, LLC, Superior Court judicial district of New Haven, Docket No. CV 07 5017598 (August 12, 2008, Bellis, J.) [ 46 Conn. L. Rptr. 157], 1 (2008); Boyer v. Miller, Superior Court, judicial district of Hartford, Docket No. CV 05 4013309 (November 28, 2006, Elgo J.).
In opposition to the defendants' motion for summary judgment, the plaintiffs do not disagree with the concept of the merger doctrine, but argue that fraud and misrepresentation act as an exception to the merger doctrine. The plaintiffs cite to Matyas v. Minck, 37 Conn.App. 321, 655 A.2d 1155 (1995), for the proposition that a misrepresentation is an exception to the merger doctrine. The plaintiffs also cite to Richard v. A. Waldman and Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967), for the proposition that "an innocent misrepresentation may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." The plaintiffs argue that the Premises was conveyed without a certificate of occupancy, was in violation of the zoning and planning rules and regulations of the city of Danbury, and, therefore the defendants breached paragraph eight of the contract.
In examining paragraph eight of the contract in the light most favorable to the plaintiffs, the court can find no affirmative representation, assurance or warranty that the condition of the Premises was not in violation of any building or zoning ordinance. The court agrees with the defendants that the language simply is not there and there is no language evidencing a false representation to the plaintiffs. Additionally, it is clear from the very terms of the contract that the Premises was sold "As Is" and "With All Faults." (See ¶ 5(b) of the Contract.)
The plaintiffs next contend that the court should look outside the terms of the contract to the Fidelity Title Affidavit and affirmative representations made therein to deny the defendants motion for summary judgment. In particular, the plaintiffs direct the court to the preprinted section relating to a survey of the property which states in relevant part: the defendants "have examined a certain survey of the property." (Defendants' Mem. in Support of Motion for Summary Judgment Ex. I.) The plaintiffs argue that the defendants failed to fill in the blanks relating to the survey and identify which survey was examined and, by doing so, affirmatively misrepresented that they examined a certain survey of the property, but in fact failed to identify which survey was examined. The plaintiffs further argue that the affidavit contains a statement that "[t]here have been no additional improvements constructed or exterior alterations made since the date of the unidentified survey," but that the defendants admit that they built an addition to the subject premises. The plaintiffs argue "whether the addition was constructed before or after the survey defendants claimed to have examined is an open question of fact for trial as the defendants did not identify the survey in the title affidavit." (Plaintiff's Mem. in Opposition to Motion for Summary Judgment pp. 5-6.) However, in their papers in opposition to the defendants' motion for summary judgment, the plaintiffs have failed to offer any evidence that a survey ever existed for the Premises or that a survey of the Premises might have existed that predates the 1980 addition to the Premises.
Based on the foregoing, the court finds that there is no material question of fact with respect to the plaintiff's breach of contract claim alleged in the First Count of the Revised Complaint and grants the defendants' motion for summary judgment on this count.
B. Negligent Misrepresentation
The defendants next move for summary judgment on the Second Count of the plaintiffs' Revised Complaint which alleges negligent misrepresentation.
The Supreme Court "has long recognized liability for negligent misrepresentation . . . [It has] 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 principals [of negligent misrepresentation] 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." (Internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 681, 940 A.2d 800 (2008), citing Williams Ford, Inc. v. Hartford Courant, Co., 232 Conn. 559, 575-76, 657 A.2d 212 (1995).
"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." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "Since the rule of liability . . . is based upon the negligence, the [defendant] is subject to liability if, but only if, he has failed to exercise the care or competance of a reasonable man in obtaining or communicating the information." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008). "Liability for negligent misrepresentation may be placed on an individual when there has been a failure to disclose known facts and, and in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak." Id.
"[A] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 180, 757 A.2d 14 (2000). "Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, supra, 104 Conn.App. 206.
The plaintiffs allege in this action that the premises conveyed to them contained alterations and structures that were constructed without proper permits or a certificate of occupancy. The plaintiffs allege that those alterations include, but are not limited, to an interior wall, electrical wiring, plumbing and sprinklers, heating, ventilation and air conditioning (HVAC) and mechanical systems. (Amended Complaint, ¶ 10.) The plaintiff also alleges that the structures and mechanical systems are so intertwined with the existing building that they cannot be easily removed or made consistent with the building code, that as a result of the undisclosed defects the plaintiffs lost the sale of the property years later and that the plaintiffs are unable to sell or rent the premises. (Amended Complaint, ¶¶ 11, 12 and 13.)
The defendants argue that the contract for the sale and purchase of the premises is clear that the property was conveyed "As is" and "With all Faults." The defendants point to paragraph 5(b) of the contract which states in relevant part "no responsibility has been or is assumed by the Seller . . . as to the condition or repair of the Premises or the value, expense of operation, or income potential thereof or as to any other fact or condition including without limitation environmental, which has or might affect the Premises or the condition, repair, value, expense of operation or income potential of the premises or any portion thereof."
"[T]he purpose and effect of an `as is clause' is to shift the burden of such a mistake to the accepting party." Holly Hill Holdings v. Lowman, 226 Conn. 748, 757, 628 A.2d 1298 (1993). "Parties are 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). "Indeed, the agreed upon contract price for property typically reflects an allocation of the known risks that attend the ownership of property." (Internal quotation marks omitted.) Id., 731. "[I]n private disputes, the court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability." Holly Hill Holdings v. Lowman, supra, 226 Conn. 756; see 1 Restatement (Second), Contracts §§ 154, 159 (1981); 2 Restatement (Second) Contracts § 208 (1981).
In this case, the plaintiffs inspected the premises prior to purchasing and agreed to purchase the Premises "As is" and "with all faults." There is no evidence in this case of any false representation relating to the property or any potential defects contained therein.
The plaintiff also claims negligent misrepresentation based upon paragraph eight of the contract which provides in relevant part that "in addition to exceptions to title mentioned in Schedule A, the premises will be conveyed subject to a) any restrictions or limitations imposed or to be imposed by governmental authority, including the zoning and planning rules and regulations of the city or town, and region or district, if any in which the premises are situated . . . Provided the same are not being violated by the subject premises and building thereon."
The plaintiffs contend that this paragraph is an affirmative representation by the defendants that the property was not currently in violation of any restrictions or limitations imposed by governmental authority, including the zoning and planning rules and regulations of the City in which the premises is located. (Plaintiffs' Mem. in Opposition to Motion for Summary Judgment p. 6.) This language as quoted by the plaintiffs does not exist in the contract. There is simply nothing in the contract that assures, guarantees or promises that the condition or use of the property was not in violation of any all city regulations.
The plaintiff also points to the Fidelity Comprehensive Title Affidavit and claims that the defendants made affirmative representations by stating under the section entitled "Survey update" they "have examined a certain survey of the property," but fail to identify which survey was examined. Upon review of the Fidelity Title Affidavit under the section entitled "survey update" in the light most favorable to the plaintiffs, it is clear that there is a blank for the section relating to the date of the survey and who the survey was prepared by. However, there is no evidence that a survey was ever done or was reviewed by the defendants. The blank portions of the title affidavit that the plaintiffs rely upon, read in context with the surrounding language in the title affidavit, does not contain any affirmative representations or misrepresentations. Moreover, the Fidelity Title Affidavit does not contain any evidence that the defendants assured, guaranteed or promised that the addition to the Premises constructed in 1980 was building code compliant.
Based on the foregoing, the court finds there is no material question of fact as whether the defendants made a false statement of material fact which the plaintiffs reasonably relied upon to their detriment. Accordingly, the court grants the defendants' motion for summary judgment on the plaintiffs' Second Count of the Revised Complaint.
C. Intentional Misrepresentation and Fraudulent Inducement
The defendants next move for summary judgment on Counts Three and Four of the plaintiffs' Revised Complaint which allege respectively, intentional misrepresentation and fraudulent inducement. In Connecticut intentional misrepresentation is also called fraudulent misrepresentation and fraudulent misrepresentation is commonly called fraudulent inducement. "Courts repeatedly use the necessary elements of common-law fraud when assessing both claims sounding in fraudulent misrepresentation and fraudulent inducement." Evans v. Province, Superior Court judicial district of New Haven, Docket No. CV 07600855 (August 4, 2008, Zoarski, J.), citing Citino v. Redevelopment Agency, 51 Conn.App. 262, 275-76, 721 A.2d 1197 (1998) (used elements of common-law fraud to assess a claim of fraudulent inducement), overruled on other grounds by Kaczynski v. Kaczynski, 294 Conn. 121, 991 A.2d 1068 (2009); See also Harold Cohn Co. v. Harco International, LLC, 72 Conn.App. 43, 50-51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002); Dorsey v. Mancuso, 23 Conn.App. 629, 633, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991) (using the terms fraudulent misrepresentation and fraudulent inducement interchangeabley.)
In an action for intentional misrepresentation or fraudulent inducement, the Supreme Court has "repeatedly held that a plaintiff must prove that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777, 802 A.2d 44 (2002); citing Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995).
In the plaintiffs' Count Three for intentional misrepresentation and Count Four for fraudulent inducement, the plaintiffs once again rely upon the language of paragraph eight of the contract for the alleged affirmative misrepresentation. Once again, construing the contract language in the light most favorable to the plaintiffs, the court can find no affirmative representation, assurance or warranty that the condition of the Premises was not in violation of any building or zoning ordinance or did not contain any defects. The court agrees with the defendants that the language is not there and there is no language evidencing a false representation to the plaintiffs. Additionally, it is clear from the very terms of the contract that the Premises was sold "As Is" and "With All Faults." There is also no evidence that the defendants had any knowledge that there was a certificate of occupancy missing from the city of Danbury building department's records prior to entering into the contract or prior to closing or that they had knowledge of the building defects cited by the plaintiffs. The plaintiffs have offered no evidence which disputes that fact and concede that the defendants had obtained a building permit for the 1980 addition at the Premises and there is a receipt for a certificate of occupancy fee from the city of Danbury.
Based on the foregoing, the court finds that there is no issue of material fact with respect to whether the defendants knowingly made a false statement of material fact to induce the plaintiffs to enter into the contract for the Premises which the plaintiffs relied upon to their detriment. Accordingly, the defendants' motion for summary judgment on Counts Three and Four of the plaintiffs' Revised Complaint is granted.
D. The Connecticut Unfair Trade Practices Act
The defendants finally move for summary judgment on the Fifth Count of the plaintiffs' Revised Complaint, which alleges that the defendants were engaged in a trade or business in Connecticut that violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b, et seq. The plaintiffs argue that in connection with that business, the defendants knew or should have known that the work done on the premises was done without proper permits or a certificate of occupancy.
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The Connecticut Supreme Court has "adopted the criteria set out in the cigarette rule by the federal trade commission . . . (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by the statutes, common law or otherwise . . . (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen.)]" (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 591. "[A]ll three criteria need not be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 156, 645 A.2d 505 (1994). "Thus, a violation of CUTPA may be established by showing an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . Furthermore a party need not prove an intent to deceive to prevail under CUTPA." (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992).
In Associated Investment Co., the Connecticut Supreme Court noted that the General Assembly, in adopting the broad language of § 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), upon which the CUTPA legislation was based, "chose not to define the scope of unfair or deceptive acts proscribed by CUTPA so that courts may develop a body of law responsive to the marketplace practices that actually generate such complaints." (Internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 157. "Predictably, [therefore,] CUTPA has come to embrace a much broader range of business conduct than does the common law tort action." (Internal quotation marks omitted.) Id., 157-58. "In addition to establishing a standard of conduct more flexible than traditional common law claims, the expansive language of CUTPA prohibits unfair or deceptive trade practices without requiring proof of intent to deceive, to defraud or to mislead." Id., 158, citing Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 362-63, 525 A.2d 57 (1987); see also Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 754-57, 474 A.2d 780 (1984).
In this case, the plaintiffs have presented no evidence that the defendants were in the business of selling commercial real estate. The piece of property at issue was a family owned business and there is no evidence of any other piece of property being for sale. In addition, there including the zoning and planning rules and regulations of the city of Danbury. No evidence has been presented that the defendants actually knew of the encumbrance and/or lack of a certificate of occupancy. The plaintiffs have also failed to refute the defendants' contention that there is no statutory obligation that the defendants make an investigation and disclosure of encumbrances and defects to a potential buyer. Finally, in examining the conduct of the defendants in this transaction, the court does not find that the conduct of the defendants was immoral, unethical, oppressive or unscrupulous.
Based on the foregoing, the court finds that there is no material question of fact as to whether defendants' conduct violated CUTPA in this action and the defendant's motion for summary judgment on plaintiff's Fifth Count of the Revised Complaint is granted.
IV CONCLUSION
Based on the foregoing, this court grants the defendants' motion for summary judgment with respect to the First, Second, Third, Fourth and Fifth Counts of the Revised Complaint.