Opinion
No. CV-02-00998809-S
August 9, 2004
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendants, Joan Hughes d/b/a Kowalski Company and Marilyn Phillips have moved for summary judgment in their favor on the grounds that the plaintiffs, Raymond Pietruszka and Paula Pietruszka allege that those defendants made fraudulent and negligent misrepresentations as to a well, water quantity and water supply on the property of the defendants Carlos Machado and Maria Machado, but there is no evidence 1) that those defendants ever made any representations of any kind to the plaintiffs or, 2) that those defendants had any knowledge of the alleged well, water quantity or water supply problems on the Machado property.
Allegations of the Complaint
The operative complaint is the Revised Amended Complaint dated January 9, 2004 (the "Complaint"). The Complaint contains nine counts. The first three counts are directed to the defendants Carlos and Maria Machado, who allegedly sold their real property located at 494 Guilford Road in Durham, Connecticut. The second three counts are directed at the defendants, The DeWolfe Company, Inc. and Gregg Doonan. The last three counts are directed against the moving defendants and allege causes of action for intentional misrepresentation (Seventh Count), negligent misrepresentation (Eighth Count), and violation of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110g (Ninth Count).
Facts
On August 23, 2002 the plaintiffs, Raymond L. Pietruszka and Paula S. Pietruszka purchased a house located at 494 Guilford Road, Durham, Connecticut, (the "Property") from the defendants Carlos G. Machado and Maria A. Machado. The moving defendants, Joan Hughes d/b/a Kowalski Company and Marilyn Phillips, were the listing brokers on the sale of the Property.
The Machados had owned the Property since 1994. During the time in which they owned the Property the Machados had experienced problems with the flow of water from their well on approximately six occasions. They believed that they had remedied the problems when they had the pump in the well lowered and a new water storage tank installed.
On May 3, 2002 the Machados completed a State of Connecticut Residential Condition Disclosure Report (the "Report") regarding the Property. The Report did not disclose any problems concerning the plumbing system, the well or the quantity of water on the Property. The Machados claim that the defendant Marilyn Philips advised them that if earlier problems at the Property had been corrected and no problem existed at present, then they could check "no" on the Report.
The Machados never advised defendants Hughes or Philips about any problems that they had experienced on the Property with respect to the well, plumbing system or water quantity. In fact there is no evidence that the Machados brought up the subject of well or water at all with Hughes or Philips. There has been no evidence presented to indicate that Hughes or Philips had any knowledge of any problems concerning the plumbing system, the well or the quantity of water on the Property on or before the date on which the plaintiff purchased the Property.
At no time did the plaintiffs have any discussions whatsoever with Philips, Hughes, or any representative of Hughes concerning the plumbing system, the well or the quantity of water on the Property. Neither Philips, Hughes or any representative of Hughes made any representations of any sort to the plaintiffs about the plumbing system, the well or the quantity of water on the Property.
Prior to purchasing the Property the plaintiffs engaged Marvin H. Schaefer Inspection Services, Inc., a licensed home inspection service, to inspect the Property. The report of Marvin H. Schaefer Inspection Services, Inc. included an inspection of the well, plumbing and pipes on the Property. It stated that the well was functioning and that the water pressure was adequate and that the well had a submersible pump, storage tank, conditioning equipment and inline filter. In their original complaint in this case the plaintiffs alleged that they relied on the inspection of Marvin H. Schaefer Inspection Services, Inc. in purchasing the property.
The plaintiffs claim that immediately upon purchasing the Property they experienced problems with the water supply and were forced to expend money for water system tests, services and inspections and well drilling.
Discussion of the Law and Ruling
"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 as to any 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 397-98, 757 A.2d 1074 (2000). "A material fact . . . [is] a fact which will make a difference in the result of the case . . . Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "[I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975). "[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Kroll v. Sebastian, 58 Conn.App. 262, 265, 753 A.2d 384 (2000). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In the Seventh Count of the Complaint the plaintiffs allege that "to induce the plaintiffs to purchase the real property, the defendants represented to the plaintiffs that the plumbing, well water system and drinking water quality and quantity were problem free, functioning normally and of good quality and normal quantity." The Seventh Count further alleges that "to induce the plaintiffs to purchase the real property the defendants represented to the plaintiffs that the water pump and well water system was regularly maintained as required." The plaintiffs claim that they purchased the property relying on these representations and that "the representations of the defendants were false and the defendants knew or should have known them to be false and such representations were made by the defendants to induce the plaintiffs to purchase the property at a price in excess of its value."
"The essential elements of fraudulent misrepresentation are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." (Citations omitted; internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991).
The defendants have produced competent evidence that they made no representations whatsoever to the plaintiffs and that they had no knowledge that the owners had any problems with their water supply, water pressure or well. The plaintiffs have admitted the foregoing. Therefore, the summary judgment may enter on the Seventh Count of the Complaint.
The Ninth Count of the Complaint alleges that the defendants' fraudulent misrepresentations constitute an unfair method of competition or and unfair or deceptive act in violation of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110a et seq. Since there is no evidence to support the allegations of fraudulent misrepresentations, and those allegations form the basis of the CUTPA allegations, summary judgment may enter on the Ninth Count of the Complaint.
The Eighth Count of the Complaint alleges a claim of negligent misrepresentation in that "to induce the plaintiffs to purchase the real property the defendants represented to the plaintiffs that the plumbing, well water system and drinking water quality and quantity were problem free, functioning normally and of good quality and normal quantity." That Count also alleges that "to induce the plaintiffs to purchase the real property the defendants represented to the plaintiffs that the water pump and well water system was regularly maintained as required." The plaintiffs claim that they purchased the property relying on these representations and that "the representations of the defendants were false and the defendants, in the exercise of reasonable care and proper diligence, knew or should have known them to be false and such representations were made by the defendants negligently to induce the plaintiffs to purchase the property at a price in excess of its value."
The Connecticut Supreme Court has recognized a cause of action for negligent misrepresentation.
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.
D'ulisse-Cupo v. Board of Directors of N.D.H.S., 202 Conn. 206, 217-18, 520 A.2d 217 (1987), quoting Restatement (Second) Torts, Section 552 (1979). Accordingly, an 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., 76 Conn.App. 352, 363-64, 824 A.2d 1 (2003).
The claim of negligent misrepresentation here suffers from the same lack of proof as that of fraudulent misrepresentation: there is no evidence that the defendants made any representations of any sort to the plaintiffs concerning anything to do with the water on the Property.
The plaintiffs rely on the case of Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 661 A.2d 530 (1995), to support their argument that the failure to disclose a material fact can constitute misrepresentation. That is a correct statement of the law. However, that case, in which the Supreme Court reversed a finding of fraudulent misrepresentation, underscores the need for a defendant to have knowledge of a material fact before he can be found to have misrepresented that fact through nondisclosure. See Barbara Weisman, Trustee, supra, at 542-43. The defendants have introduced evidence, which the plaintiffs have not controverted, that the Machados never advised the defendants that they had had any trouble with their well or water supply.
The plaintiffs argue in their brief that the defendants are somehow liable for misrepresentation based on Connecticut General Statutes § 20-327b, the Uniform Property Condition Disclosure Act. They argue, specifically, that the act required the defendants to ferret out all past problems the owners had experienced and force the owners to disclose those problems.
This argument cannot succeed for several reasons. First, nowhere in the Seventh, Eighth or Ninth Counts, the only Counts directed to the moving defendants, do the plaintiffs allege any violation of § 20-327b, or any misrepresentation which arose by virtue of such violation. "The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Internal quotation marks omitted.) Marchetti v. Ramirez, 40 Conn.App. 740, 747, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997).
Moreover, in Giametti v. Inspections, Inc., 76 Conn.App. 352, 824 A.2d 1 (2003), the Appellate Court stated:
We briefly address the question of whether § 20-327b governs negligent misrepresentation actions. The statute, on its face, does not govern such actions. Additionally, the legislative history demonstrates the legislature's intent not to use the statute as a basis for recovery against vendors who negligently misrepresent the condition of a residential property. Representative Eberle explained that the statute" makes clear that the [§ 20-327b] report represents only the seller's actual knowledge of the property and does not form the basis for any claim of constructive knowledge on the seller's part." 38 H.R.Proc., supra, p. 6963. The plaintiffs have not cited authority to the contrary. Accordingly, we hold that § 20-327b does not govern negligent misrepresentation actions.
The defendants correctly point out that § 20-327b "emphasizes the significance of an independent professional inspection by urging a purchaser to hire a professional to inspect the property despite the representations made on a § 20-327b report. General Statutes §§ 20-327b(d)(2)(B) and 20-327d." Giametti, supra, at 364-65.
In Giametti, as in the present case, the § 20-327b disclosure form urged the buyers to obtain an independent inspection of the property and the buyers did obtain such inspection. In Giametti the inspection did not reveal the presence of ant infestation on the property. In the present case, the independent inspection indicated that the water supply was adequate and did not reveal any problems with the well. The Court in Giametti held that the independent inspection negated the claim that the buyers relied on the seller's failure to disclose, thereby defeating a claim for misrepresentation through non-disclosure.
The plaintiffs have not presented any evidence that the defendants made any representations whatsoever to the buyers. They have also failed to plead or present any law to the effect that Connecticut General Statutes § 20-327b creates a duty by a realtor to force a seller to disclose defects of which the realtor is not aware. Therefore, the Motion for Summary Judgment as to the Eighth Count is hereby granted.
By the court,
Aurigemma, J. CT Page 11927-a