Opinion
No. CV 06-5002954
March 6, 2008
MEMORANDUM OF DECISION
Before this court are three motions for summary judgment: one by the plaintiff Carol Canino against defendants Jerry and Debra Wood based on an alleged breach of warranty of a fee simple deed; one by defendants Jerry and Debra Wood (hereinafter "Wood") against the plaintiff based essentially upon plaintiff's knowledge of an existing easement on the subject property and waiver, and one by Wood against Attorney F. William O'Connor and the law firm of F. William O'Connor (hereinafter "O'Connor") in legal malpractice based on the alleged failure of O'Connor to except the easement in the warranty deed given to the plaintiff. The facts are as follows.
The defendants Wood, owners of 24 Woodside Circle, Hartford, Connecticut, knew of the existence of a Metropolitan District Commission (hereinafter "MDC") easement across their property and on August 23, 2002, agreed with the MDC to clarify the easement and include the right in Wood "to use, alter, replace all or any portion of the house and other improvements in substantially their present location; . . ." In February 2005, defendants Wood and plaintiff Canino entered into a contract for sale of the Woodside Circle property at a price of $ 1,190,000.00. Several times before the closing plaintiff Canino and his wife inspected the property and its grounds.
Canino, through her attorney William Breetz, arranged for title search of the property. The title search disclosed the existence of the sewer easement. There is a question whether or not Attorney Breetz actually saw the reference to the easement. He forwarded the title search to Wood's attorney O'Connor for the preparation of a warranty deed. Apparently, Attorney O'Connor, representing Wood, also did not notice the reference to the easement in the title search. O'Connor prepared the warranty deed without reference to the sewer easement and Breetz allowed Canino to accept the warranty deed without reference it. By the warranty deed dated August 3, 2005 the defendant Wood conveyed the property to the plaintiff Carol Canino "with Warranty Covenants."
After the purchase, Canino took possession of the premises and has made extensive repairs to them.
In April 2006, plaintiff initiated this action against defendants Wood. In July 2006, the defendants Wood brought a third-party complaint against O'Connor for indemnification and costs of defense based on O'Connor's alleged professional malpractice.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS WOOD
Plaintiff moves for partial summary judgment for liability only on the first count of her complaint in which she alleges against the defendant sellers a claim of breach of warranty of clear title. Admissions and the answer of the defendants, their response to interrogatories, documents, and the depositions clearly establish that defendants executed and delivered to the plaintiff a warranty deed that did not except a recorded sewer easement on the property.
The plaintiffs claim that an easement, not specifically listed on a warranty deed, is an encumbrance that results in a per se breach of the warranty, even if the recipient of the deed had actual knowledge of the easement at the time of the transaction. The plaintiff cites as authority for that proposition Hubbard v. Norton, 10 Conn. 422 (1835). In that case, the property conveyed had open and notorious highways running through it, but they were not listed as an encumbrance in the warranty deed. The question before the court was, "Whether the evidence is admissible to show, that the plaintiff, when he took the deed, knew of the existence of these roads." (At 431.) The court held that the evidence that plaintiff, when he took the deed, knew of the existence of the roads was not admissible. It noted, "For if the highways are encumbrances, and that known to the plaintiff, yet if the defendants were willing to warrant against them, that warranty must be obligatory . . ." ( Id.) The court continued, "When it is recollected, this is the deed of the grantor, and these his covenants, it seems more correct to say, that he must abide by them than to permit him to unnerve or destroy them by proof of this kind, which is only calculated to induce a belief that a party grantor could not have intended what he has actually covenanted for." (At 432.)
In Berube v. Nagle, 81 Conn.App. 681 (2004), the issue was whether or not the seller of real property breached the warranty deed he gave to the purchaser when the deed did not except the right of way over the subject property, even if the purchaser had knowledge of the right of way. The Appellate Court agreed with the trial court that it was a breach of the warranty deed. The court said "It has long been held that knowledge of the encumbrance by the grantee at the time of purchase is immaterial . . . `The fact that the grantee knew of an outstanding superior claim at the time of the conveyance does not bar his right to recover for breach of a covenant of warranty . . .'" 20 Am.Jur.2d 536, Covenants § 108 (1995).
The single authority to support the cited quote in the 1995 and 2005 edition of Am.Jur. is Wolffe v. Woodruff, 258 Ala. 1, 61 So.2d 69 (1952). That case makes no mention of the knowledge of the grantee and does not sustain the principle for which it was cited. In it, the Alabama Supreme Court sustained a demurrer to a complaint, holding that the plaintiff, a subsequent purchaser of land, had no cause against a former owner of the land, who had given a warranty deed without listing an easement, not to the plaintiff but to a purchaser prior to the plaintiff.
Defendants Wood assert as a special defense not only that plaintiff Canino had knowledge of the easement but also she waived the defect in the deed. "Waiver is an intentional relinquishment of a known right." Novella v. Hartford Accident Indemnity Co., 163 Conn. 552, 561 (1972). "To constitute a waiver there must be both knowledge of the existence of the right and intent to relinquish it." Id. at 562. (Emphasis in the original.)
In the instant case, there is a substantial issue of fact of whether or not plaintiff knew of the easement before the closing. While she and her husband inspected the property and her husband may have seen a manhole, the court is left with only an inference of her knowledge of the easement. Likewise, although her attorney Breetz received the title search citing to the easement, there is a conflict of fact whether he noticed or became aware of it. What he should have known, but did not actually know, may not necessarily be imputed to the plaintiff.
Moreover, waiver invokes the issue of intent and that also is a question of fact. As stated in Stefanoni v. Duncan, 282 Conn. 686, 699 (2007) ". . . in most contexts, the issue of intent is a factual question."
Moreover, Canino's knowledge goes very much to the issue of damages and damages goes to whether or not the plaintiff has a claim for breach of warranty. It is well settled that 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." Buchard v. Sundberg, 80 Conn.App. 180, 189 (2003). The court noted in AFSCME, Connecticut Council 4 v. Andover, 49 Conn.Sup. 603, 608-09 (2006) [ 40 Conn. L. Rptr. 796], "In the cases presently before this court, the parties agree that the cause of action on which AFSCME's complaint is grounded is an alleged breach of contract under the plan. One of the essential elements of such an action is damages." It is further noted in 225 Associates v. Connecticut Housing Finance Authority, Superior Court, judicial district of Fairfield at Bridgeport, docket no. CV 302267 (June 23, 1998, Skolnick, J.), "Nevertheless, the plaintiff has failed to prove a claim for breach of contract because it has not shown the fourth element of the cause of action: damages."
In the instant case, if the plaintiff had knowledge of the easement before the closing, that fact could impact her damages. A fact finder could find that, knowing of the easement, she got exactly what she expected to get by the deed and so suffered no damages. In that event, under the cases cited above, she would have failed to prove an essential element of her claim.
Since the fact of plaintiff's knowledge is in dispute, and intent, as an element of waiver, is also disputed, plaintiff's motion for summary judgment must be denied.
DEFENDANT WOODS' MOTION FOR SUMMARY JUDGMENT AGAINST THE PLAINTIFF
Defendant Woods move for summary judgment against the plaintiff on the grounds that the plaintiff has waived the breach of warranty by reason of her knowledge of the easement before the closing. For all the reasons denying plaintiff's motion for summary judgment by reason of existing issues of fact as to the plaintiff's knowledge and intent, defendants Wood's motion for summary judgment must be denied.
APPORTIONMENT PLAINTIFFS WOOD'S MOTION FOR SUMMARY JUDGMENT AGAINST O'CONNOR
The defendants and apportionment plaintiffs Woods move for summary judgment against their attorney F. William O'Connor and the Law Office of F. William O'Connor on the grounds that O'Connor committed legal malpractice in failing to except the sewer easement in the warranty deed he prepared for Wood. Facts established that O'Connor represented Wood in the sale of the premises to the plaintiff, and that representation included preparation of the warranty deed to the property and the other standard real estate documents. Wood explained to O'Connor the history of the easement and how a clarified easement had been placed on the property in 2002. Canino's attorney Breetz transmitted to O'Connor the title search which disclosed the easement. In preparing the warranty deed, O'Connor did not cite the easement as an exception in the warranty deed. O'Connor also prepared an owner's affidavit and owner's special title and survey report which failed to disclose the easement. As a consequence of this malpractice, Wood claims indemnification for any loss they may suffer by reason of the Canino suit, including indemnification, expenses of defense, and costs and expenses incurred by Wood in prosecuting this legal malpractice claim.
"Malpractice is commonly defined as the failure of one tendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent, reputable member of the profession with the result of injury, loss or damage to the recipient of those services . . . Generally, to prevail on a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care." Dubreuil v. Witt, 80 Conn.App. 410, 420 (2003), aff'd, 271 Conn. 782 (2004).
The rationale underlying the requirement of expert testimony is that "in most cases the determination of attorney's standard of care, which depends on particular circumstances of the attorney's representation, is beyond the experience of the average lay person, including members of the jury and perhaps even the presiding judge . . ." St. Onge, Stewart, Johnson Reems, LLC v. Media Group, Inc., 84 Conn.App. 88-95, cert. denied 271 Conn. 918 (2004).
However, the general rule does not apply to cases where there is present such an obvious and gross want of care and skill that the neglect is clear even to a lay person. Id.
An instance where expert testimony was not required is one in which the lawyer allowed judgment of default to be rendered against his client because the attorney had done absolutely nothing to protect him. Paul v. Gordon, 58 Conn.App. 724 (2000).
In the instant case, Wood has provided no evidence regarding the appropriate standard of care, the breach thereof, and the breach causing injuries to them. The relationship of an easement to a warranty deed is generally not within the common knowledge of lay persons. Moreover, a lay person cannot judge the quality and skill of an attorney's representation over the course of an entire real estate transaction without some guidance on the applicable tasks and requirements of that representation. As a consequence, Wood's motion for summary judgment against O'Connor must fail.
However, the court notes that Wood cannot obtain counsel fees for prosecuting this malpractice suit because they are not provided for by contract or permitted by statute.
The court emphasizes that although it has denied all three motions for summary judgment, it has made no ruling on the merits of the claims of the parties in this case. This ruling is solely premised on the existence of material issues of fact which require a trial to determine them.
The motions for summary judgment of the plaintiff against defendants Wood, that of defendants Wood against the plaintiff, and that of the apportionment plaintiffs Wood against apportionment defendant O'Connor are all denied.