Opinion
No. CV 02 0821438
October 7, 2003
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE
The defendants, DeWolfe Associates, Coldwell, LLC doing business as Coldwell Real Estate and Sandra Whitaker (collectively, DeWolfe) move to strike counts two and three of the plaintiff's amended complaint. Count two alleges negligence. Count three alleges misrepresentation. The facts are as follows.
FACTS
The plaintiff, Robert Miller, was the owner and seller of real property known as 26 Kirkwood Rd. (Kirkwood). The plaintiff was represented by his own real estate agent. The buyer, Clifford Ryan, was represented by Sandy Whitaker (Whitaker), a real estate agent acting within the scope of authority of DeWolfe. The plaintiff and the buyer entered into a real estate purchase and sale agreement dated June 8, 9 and 21, 2002 (agreement). The agreement provided that plaintiff was to sell and buyer was to purchase Kirkwood for a certain price on or before August 7, 2002. The buyer secured the transaction with a deposit of five thousand dollars. Pursuant to the agreement, the buyer had until July 19, 2002 to obtain a mortgage commitment. In the event the buyer failed to do so, the buyer would have the opportunity to terminate the agreement. The plaintiff had the right to terminate the agreement seven days thereafter.
As the mortgage contingency date approached, the plaintiff requested assurances from both the buyer and Whitaker that a mortgage commitment was forthcoming. Up and until July 19, 2002 Whitaker allegedly assured the plaintiff that a mortgage commitment was in place, valid, and that a closing would go forward. Whitaker also faxed a document to the plaintiff that purported to be a mortgage commitment. The plaintiff alleges that in reliance on Whitaker's and the buyer's representations, he did not terminate the contract and went forward with his commitment to purchase another home.
As the closing date of August 7, 2002 approached, the plaintiff advised the buyer that he was ready, willing and able to convey Kirkwood to him pursuant to the agreement. The buyer, however, informed the plaintiff that he did not have the mortgage commitment or the funds necessary to purchase the property. The plaintiff claims that as a result of the buyer's breach of the agreement, the plaintiff not only had to expend large sums of money to put the property back on the market months after the prime selling season, but also had to pay for additional moving expenses, as well as pay for legal services and workmen. The plaintiff ultimately sold the property, but at a price lower than that previously agreed upon by the buyer and the plaintiff. As a result of these events, the plaintiff brought a claim for recovery against the buyer and DeWolfe.
In his amended complaint, the plaintiff alleges that DeWolfe knew or should have known, through the exercise of due care and diligence, that the buyer would not be able to get a mortgage commitment or purchase the property. The plaintiff further alleges that, in reliance upon DeWolfe's oral and written assurances, he did not rescind the agreement when he had an opportunity to do so. As a result of DeWolfe's alleged negligence and carelessness in failing to properly investigate the buyer's ability to purchase the property before making oral and written assurances, the plaintiff claims he suffered significant economic losses and a great deal of emotional distress.
The DeWolfe defendants move to strike the only two claims made against them sounding in negligence and misrepresentation. Their main argument in support of their motion to strike is essentially that, as the buyer's agent, they do not owe a duty of care to the plaintiff seller.
On September 15, 2003, a hearing by Special Notice was scheduled for further oral argument. At this hearing both parties were asked to present additional arguments in support of a public policy reason for favoring or prohibiting the imposition of a duty of care on a real estate agent to third parties.
Following the hearing, DeWolfe submitted a supplemental memorandum of law in support of its motion to strike. In its supplemental memorandum DeWolfe argues that since both the buyer and the seller were each represented by their own real estate agents, there is no basis to impose liability on the buyer's agent for information communicated to the seller's agent. DeWolfe also provides the legislative history of General Statute § 20-325f and claims that the legislative history lends considerable support against imposing liability on the buyer's agent under the facts of this case.
General Statutes § 20-325f provides: "No real estate broker shall make any unilateral offer of subagency or agree to compensate, appoint, employ, cooperate with or otherwise affiliate with a subagent for the sale or purchase of real property without the informed written consent of the person whom the real estate broker represents. Such written consent shall contain the name and real estate license number of the real estate broker to be appointed as the subagent and shall contain a statement notifying the person whom the real estate broker represents that the law imposes vicarious liability on the principal for the acts of the subagent."
DISCUSSION
The standards to be applied on a motion to strike are well known. "A motion to strike tests the legal sufficiency of the pleadings to state a claim upon which relief can be granted. Practice Book § 10-39(a)(1); see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). In a motion to strike, the evidence offered in the complaint "is to be taken as true and every reasonable inference is to be drawn in the plaintiff's favor." Tomasso v. Armor Construction Paving, Inc. et al., 187 Conn. 544, 547, 447 A.2d 406 (1982). Whether the party can prove the allegations at trial is immaterial. Levine v. Bess and Paul Sigel Hebrew Academy of Greater Hartford, Inc., 39 Conn. Sup. 129, 132, 471 A.2d 679 (1983).
NEGLIGENCE
In moving to strike the negligence claim, DeWolfe argues that the plaintiff has failed to allege that they owed duty of care to the plaintiff. Specifically, DeWolfe maintains that in order to assert a claim of negligence, the plaintiff must demonstrate that they owed the plaintiff a fiduciary duty. Since DeWolfe was representing the buyer, DeWolfe claims that they could only owe a fiduciary duty to the buyer not the seller. As a result, DeWolfe maintains that the plaintiff's negligence claim must fail. DeWolfe further contends that an agent cannot be held liable for the actions of a disclosed principal and cites Whitlock's Inc. v. Malney, 123 Conn. 434, 196 A.2d 149 (1937), and Scriverner's v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975), in support of this proposition. The defendant also claims that there is considerable public policy found in the legislative history of § 30-325f against imposing a liability on agents for the actions of their principal.
It is true that an agent is not liable for nonperformance where, acting within the scope of his authority, he contracts with a third party for a known principal, however, an agent can still be held liable to a third party if he commits or participates in the commission of a tort, whether or not he is acting on behalf of his principal. Scriverner's v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975); First National Bank Trust Co. v. Manning, 116 Conn. 335, 340, 164 A. 881 (1933); Semple v. Morganstern, 97 Conn. 402, 404, 116 A. 906 (1922).
The plaintiff argues that DeWolfe's assertions are entirely erroneous. Specifically, the plaintiff maintains that in a negligence claim, and particularly under the facts of this case, he is only required to allege the existence of a standard duty of care, not a fiduciary duty. Moreover, the plaintiff agrees that a buyer's agent does not normally owe a duty of care to provide information to a seller, however, having voluntarily assumed the act of furnishing information, the plaintiff claims that DeWolfe owed him a duty of care to verify that the information was accurate. This is particularly true, according to the plaintiff where DeWolfe knew or should have known that the plaintiff would detrimentally rely on such representations to his detriment. Having claimed that a duty is owed, the plaintiff then asserts that DeWolfe breached that duty and, as a result of the breach, caused plaintiff to suffer damages.
It is well settled that to recover for negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that this breach actually and proximately caused injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The first and most critical element in a negligence claim, and the central issue in this case, is the existence of a duty, for "[i]f a court determines, as a matter of law, that a defendant owed no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." Id. at 384-85.
The defendants erroneously argue that the plaintiff must allege and provide facts indicating that a fiduciary relationship existed between them. It is axiomatic that in an ordinary negligence claim it is not necessary to allege a fiduciary duty where no such duty exists. Here a fiduciary relationship clearly did not exist between the plaintiff and the defendants. The fiduciary obligations of the parties in this case are clearly established by state statute. General Statutes § 20-325d(1)(c) defines a seller's agent as "a real estate broker or real estate salesman who acts in a fiduciary capacity for the prospective seller or prospective lessor in a real estate transaction." Section 20-325d(1)(d) provides that a buyer's agent "means a real estate broker or real estate salesman who acts in a fiduciary capacity for the prospective buyer or prospective lessee in a real estate transaction." The amended complaint in the present case provides that DeWolfe was the buyer's agent. As the buyer's agent, DeWolfe owed a fiduciary duty only to its principal, the buyer. The plaintiff was also represented by his own independent real estate agent. The court agrees with the plaintiff that the critical issue is not whether DeWolfe owed the plaintiff a fiduciary duty, but rather whether they owed the plaintiff an ordinary duty of care in obtaining and communicating the information they provided to the plaintiff.
See St. Denis v. De Toledo, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180606 (April 5, 2002, Downey, J.) ("[n]egligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty").
The existence of a duty of care is a question of law to be resolved by the court. Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). "A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what . . . [that person] . . . knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Coburn v. Lenox Homes Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982). "Duty is a legal conclusion about relationships between individuals made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Citations omitted; internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 385-86.
Our Supreme Court has delineated a two-pronged test to be used as a threshold for establishing the existence of duty. Mendillo v. Board of Education, supra, 246 Conn. 483-84. This two-part inquiry entails "(1) a determination of whether an ordinary person [or ordinary real estate agent] in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part . . . invokes the question of foreseeability, and the second part invokes the question of policy." Id.
Applying this test, the court must first determine whether the alleged harm suffered by the plaintiff was foreseeable. Specifically, did DeWolfe know or should it have known that the alleged assertions regarding the mortgage approval would be relied upon by the plaintiff to his detriment? Secondly, if it was foreseeable, should responsibility for its acts be extended to DeWolfe as a matter of public policy? This court answers both questions in the affirmative.
The court finds that it is reasonably foreseeable that a seller might rightfully and detrimentally rely and act upon representations, which were voluntarily undertaken and disseminated by a buyer's agent who is assumed to hold a special relationship with the buyer. Moreover, there are sound policy reasons for holding a real estate agent responsible for his/her negligent conduct. At the outset, there is "the general rule that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct, whether that conduct consists of acts of commission or omission." Gazo v. Stamford, 255 Conn. 245, 251, 765 A.2d 505 (2001). Additionally, there is the public policy consideration as expressed in General Statutes § 20-320 which prohibits a real estate agent from "making any material misrepresentation" in the course of a real estate transaction or make "any false promise of a character likely to influence, persuade or induce." Section 20-328-5a of the Regulations of Connecticut State Agencies also provides that a licensed real estate agent cannot misrepresent facts and is to exercise due diligence in presenting accurate information to the public. Likewise, a standard of care involving misrepresentation is set forth in 3 Restatement (Second), Torts § 552, pp. 126-27 (1977) which provides: "[o]ne 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" (Emphasis added; internal quotation marks omitted.) See also, Giametti v. Inspections, Inc., 76 Conn. App. 352, 363-64, 824 A.2d 1 (2003). This sound policy is further buttressed in W. Prosser, Torts § 107, at 701 (4th ed. 1971), which provides that "[r]epresentations made by one who is conscious that he has no sufficient basis of information to justify them are as actionable as representations made with positive knowledge of their falsity, because in making them the speaker misrepresents not only the external facts but also the extent of his own information." Our Supreme Court has held that `[w]here an agent commits or participates in the commission of a tort . . . he is liable to third persons injured thereby.'" Maturo v. Gernard, 196 Conn. 584, 589, 494 A.2d 1199 (1985) (finding that an agent can be liable for his statements even if not made within the agency relationship if he "made them in circumstances under which he was chargeable with knowledge of their falsity").
"General Statute § 20-320, entitled "Suspension or revocation of licenses. Fines," provides in part: "The Department of Consumer Protection may, upon the request of the commission or upon the verified complaint in writing of any person, if such complaint, or such complaint together with evidence, documentary or otherwise, presented in connection with such complaint, shall make out a prima facie case, investigate the actions of any real estate broker or real estate salesperson or any person who assumes to act in any of such capacities within this state. The commission may temporarily suspend or permanently revoke any license issued under the provisions of this chapter and, in addition to or in lieu of such suspension or revocation, may, in its discretion, impose a fine of not more than two thousand dollars at any time when, after proceedings as provided in section 20-321, the commission finds that the licensee has by false or fraudulent misrepresentation obtained a license or that the licensee is guilty of any of the following: (1) Making any material misrepresentation; (2) making any false promise of a character likely to influence, persuade or induce; (3) acting as an agent for more than one party in a transaction without the knowledge of all parties for whom the licensee acts . . ."
Regs., Conn. State Agencies § 20-328-5a: Misrepresentation, disclosure and advertising
(a) A licensee shall not misrepresent or conceal any material facts in any transaction.
(b) No licensee shall misrepresent the actual selling price of real estate to any lender or any other interested party, either verbally or through the preparation of a false sales contract.
(c) A real estate broker shall exercise diligence at all times in obtaining and presenting accurate information in the broker's advertising and representations to the public . . . (Emphasis added.)
The court also finds the developing case law and policy of other states persuasive. Instructive to the present case is Maxwell v. Ratcliffe, 356 Mass. 560, 254 N.E.2d 250 (1969), and Kannavos v. Annino, 356 Mass. 42, 247 N.E.2d 708 (1969). In CT Page 1682 Maxwell the court held that the seller's brokers in representing to the buyer that a cellar was dry acted in respects in which they owed a duty, not only to its principal, but also to the buyers with whom it dealt directly. The court found in favor of the buyers and held that "because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice." Maxwell v. Ratcliffe, supra, 356 Mass. 563. Similarly, in Kannavos, the court held that "[a]lthough there may be no duty imposed upon one party to a transaction to speak for the information of the other . . . if he does speak with reference to a given point of information, voluntarily or at the other's request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading . . . as active misrepresentation, and half-truths may be as actionable as whole lies." Kannavos v. Annino, supra, 356 Mass. 48.
Other states have also formulated judicial and statutorily imposed duties with respect to real estate agents. The Wyoming Supreme Court has held that "an affirmative duty exists on the part of real estate professionals with respect to non-client parties to a real estate transaction. Such duty is imposed as a matter of public policy given the importance of transactions relating to real property . . . [S]uch duty arises in anyone who, in the course of his business, profession, or employment, supplies false information for the guidance of others in their business transactions, if he fails to exercise reasonable care or competence in obtaining or communicating the information." Hulse v. BHJ, Inc., 71 P.3d 262, 268 (Wyo. 2003). The Court explained that "[r]eal estate brokers and salesmen are licensed by the state of Wyoming and required to meet high standards of honesty, integrity, trustworthiness and competency. Theirs is a regulated profession. Failure to satisfy those standards is grounds for suspension or revocation of a real estate broker's or salesperson's license. An act licensing real estate agents must be construed in the light of an obvious purpose of protecting the public in the handling of important and valuable transactions relating to real property." Id., 266.
In Utah, the Supreme Court held that "[t]hough not occupying a fiduciary relationship with prospective purchasers, a real estate agent hired by the vendor is expected to be honest, ethical, and competent and is answerable at law for breaches of his or her statutory duty to the public." Dungan v. Jones, 615 P.2d 1239, 1258 (Utah 1980). In New Hampshire courts have similarly held that "[i]t is the duty of one who volunteers information to another not having equal knowledge, with the intention that he will act upon it, to exercise reasonable care to verify the truth of his statements before making them." Mertens v. Wolfeboro National Bank, 119 N.H. 453, 402 A.2d 1335 (1979) (finding that since the seller's real estate agent did not have a sufficient basis to determine the condition of the septic system, it owed a duty to the buyer not to make a representation regarding its condition).
The Court of Appeals for the District of Columbia held that a real estate agent in assuring the appellant buyer that the sales contract would protect him against all termite infestation and damages could be said to have voluntarily taken on the duty of care to see that appellant buyer was correctly informed about the existing termite damage. Remeikis v. Boss Phelps, Inc., 419 A.2d 986, 991, 419 A.2d 986 (1981). "[One] who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Id., quoting Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (1922). In Spargnapani v. Wright, D.C.Mun.App., 110 A.2d 82 (1954), a real estate broker was held liable for the innocent misrepresentations of its employee who had told a prospective purchaser that a certain house could be heated for $100 per year when in fact the boiler was cracked and the defect had been concealed by the owner. In partial reliance on that representation, the purchaser bought the house and later brought an action against the broker.
The Connecticut courts have not addressed the issue directly but seem to infer that an agent owes a duty of care not to make misrepresentations. Citino v. Redevelopment Agency, 51 Conn. App. 262, 721 A.2d 1197 (1998) (finding that since the defendant developer's agent had not made any actual false representations, the buyer could not succeed with his claim for negligent or fraudulent misrepresentation); Bradley v. Oviatt, 86 Conn. 63, 84 A. 321 (1912) (in an action for false misrepresentation by a buyer against a seller's real estate broker, the court held that the buyer relied upon his own judgment rather than on broker's statements regarding of the value of the land, therefore broker was not liable to the buyer); Clifford St. John Sons v. The Farley Co., Superior Court, judicial district of Stamford, Docket No. CV 89 0099957 (Dec. 14, 2000, Nadeau, J.) (the court held that it did not need to address the difficult subject of a broker's duty to its non-client buyer when making representations since there was enough evidence that buyer did not sufficiently rely on said representations).
This court has closely considered DeWolfe's public policy argument against the imposition of a duty of care on a real estate agent which the defendants claim is embedded in § 20-325f. In its supplemental memorandum, DeWolfe emphasizes that the purpose of this statute was to enforce disclosure of agency relationships and to shield agents from liability for actions of their disclosed principal. The court finds the defendant's argument unpersuasive. While the court does not contest the purpose behind § 20-325f, this section is limited to addressing the problems surrounding the use of broker subagencies. In the instant case the record does not indicate the existence of subagency and the parties do not appear to dispute the fact that the defendant was representing only the buyer. DeWolfe, in both its written and oral argument, persists in pursuing the argument that it cannot be held liable for the actions of its principal. The issue before this court, however, is not whether the defendant agent should be held liable for negligent actions of its principal. Rather, the issue here is whether the defendant agent as a matter of public policy should be held liable for its own negligent actions or, to be more precise, whether a duty of care is owed by a real estate agent to a third party when making representations. (See footnote 2 of this decision citing cases finding an agent can still be held liable to a third party for his own torts even if he is acting on behalf of his principal.)
The court is persuaded that while a real estate agent does not normally owe a duty of care to a third party, when the agent voluntarily offers information, the agent does owe a duty of care not to misrepresent material facts.
The plaintiff has set forth the following facts in his complaint. Ms. Whitaker, the real estate agent employed by or acting within the scope of authority of DeWolfe, represented the buyer as buyer's agent in the purchase of plaintiff's property. (Amended Complaint, ¶¶ 1-3.) The purchase and sale agreement of the parties contained a mortgage contingency which designated July 19 as the deadline for the buyer to obtain a mortgage. (Amended Complaint, ¶ 6.) Up and until that date the plaintiff was given assurances by DeWolfe through its agent that there would not be a problem with the mortgage commitment. (Amended Complaint, ¶ 7.) On July 19, DeWolfe's agent faxed a copy of a conditional loan approval letter to the plaintiff. (Amended Complaint, ¶ 7; Plaintiff's Exhibit B.) In reliance on these representations and continued assurances, the plaintiff did not terminate the purchase and sale agreement and also went forward with his commitment to purchase another home. (Amended Complaint, ¶¶ 8, 10, 15.) On the closing date of August 7th the buyer was unable to produce a mortgage commitment or close on the property. (Amended Complaint, ¶ 10.) As a result of DeWolfe's negligence and carelessness in properly failing to investigate the buyer's ability to purchase the property before making oral and written assurances, the plaintiff suffered significant economic losses. (Amended Complaint, ¶ 16-17.)
On a motion to strike, the court must give the allegations of the complaint under attack every favorable inference in favor of sustaining the complaint. Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). Taken as true, the plaintiff has sufficiently alleged that DeWolfe owed the plaintiff the duty of care of a reasonable real estate agent. Such duty arose once DeWolfe furnished information regarding the mortgage commitment and the buyer's ability to purchase the property. Having voluntarily provided this information, DeWolfe should have foreseen that unless it exercised reasonable care in providing the information, the general harm allegedly suffered by the plaintiff would likely result if the information was material and incorrect. The plaintiff has also alleged that DeWolfe breached that duty and that he suffered harm as a consequence of that breach. Whether the statements made by DeWolfe constituted a misrepresentation, whether DeWolfe breached its duty of care, or whether the plaintiff's reliance was reasonable are questions of fact not to be resolved in a motion to strike. For the purpose of a motion to strike, the plaintiff has alleged sufficient facts to sustain a negligence claim. Accordingly, DeWolfe's motion to strike count two of the plaintiff's amended complaint is denied.
MISREPRESENTATION
Count three asserts a misrepresentation claim, however, it is unclear from the complaint whether the cause of action is grounded in negligence or innocent misrepresentation. The court will consider these together. The DeWolfe defendants' extremely brief argument in favor of striking the misrepresentation claim is essentially that the plaintiff has not provided any specific references of untrue statements made by DeWolfe or its agent on specific dates. The plaintiff argues that the amended complaint does in fact mention what was said, by whom, and on what date. The plaintiff points to paragraphs fourteen and fifteen of count three of the amended complaint which provides that DeWolfe and its agent, Whitaker, knew or should have known by exercising due care that the buyer was financially unable to purchase the property at closing and that the plaintiff, relying upon the oral and written assurances of the defendants, did not rescind the contract to his detriment. The plaintiff also argues that more specific facts such as the precise wording and method of communication are for the discovery and trial phase of the case and are not vital to the complaint.
In order to maintain a claim for negligent misrepresentation, a plaintiff must allege: "1) [that] a false representation was made to the party as a statement of fact, 2) it was made for the guidance of the party, 3) the party making the representation failed to exercise reasonable care in obtaining or communicating the information, and 4) the pleading party justifiably relied on the representation to its detriment." Ocwen Federal Bank, FSB v. Rivas, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0368135 (February 21, 2002, Stevens, J.). The governing principles are set forth in § 552 of the Restatement (Second) of Torts (1977) as provided in the negligence claim. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). Our Supreme Court has also 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 . . ." Id. Therefore, "[a] person is subject to liability for an innocent misrepresentation if . . . [he or she] makes a representation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it . . . even though it is not made fraudulently or negligently." (Internal quotation marks omitted.) Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997).
The plaintiff's allegations are essentially the same as those in the negligence claim. Applying the permissive standard of a motion to strike once again, the court concludes that the plaintiff has alleged sufficient facts to set forth a claim of misrepresentation, whether negligent or innocent. Whether the assurances were false and whether reasonable care was used in making the statements is not to be decided in a motion to strike.
CONCLUSION
For the foregoing reasons, the court denies the DeWolfe defendants' motion to strike counts two and three of the plaintiff's amended complaint.
BY THE COURT
Kevin E. Booth, J.