Opinion
No. CV 04-4002711
April 17, 2006
RULING ON DEFENDANTS' MOTION TO STRIKE
I
The defendant, Zenobia Wierzbicki, an individual owner of residential property at 51 Ridge Crest Circle in Wethersfield sold her residential property to the plaintiffs, Abdul and Fatima Wardak. The plaintiffs have brought suit against Wierzbicki and a number of other defendants. Against Wierzbicki, the plaintiffs have alleged, in four counts, intentional misrepresentation, a violation of General Statutes § 20-327(b), breach of contract and a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). Wierzbicki has moved to strike the first and fourth counts for failure to allege sufficient facts to state causes of action for which relief can be granted. The plaintiffs have filed an objection to the motion to strike. Oral argument was heard on April 10, 2006. For the foregoing reasons, the motion to strike Counts One and Four is granted.
II
A motion to strike contests the legal sufficiency of a plaintiff's claims. Faulkner v. United Tech. Corp., 240 Conn., 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the complaints, construed in favor of the plaintiffs, to determine whether the plaintiffs have stated a legally sufficient cause of action." Napoletano v. CIGNA Healthcare, 238 Conn. 216, 223-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997). The reviewing court must assume that the facts alleged in the complaint are true. See Waters v. Autuori, 236 Conn. 820, 825-26, 676 A.2d 357 (1996).
Count One CT Page 7175
In paragraph 8 of the first count of the complaint alleging intentional misrepresentation, the plaintiffs allege the defendant intentionally, knowingly and falsely represented that the property was not in a wetlands area and had no patio or deck problems, rot, water damage, water drainage problems, water seepage in the basement, chimney problems or asbestos. Plaintiffs allege they were induced to purchase the property as a result of these misrepresentations and the defendant knew or should have known her representations as to the non-existence of the above defects was false. It is important to note that the plaintiffs rely, in part, on the defendant's completion of a "Residential Property Condition Disclosure Report" in which the defendant made representations denying any knowledge of the above problems.The defendant claims the fraudulent misrepresentation claim is inadequate as a matter of law because it fails to allege the plaintiff's reliance on the defendant's misrepresentation was reasonable or justified or how the defendant knew that the representations were false.
In an action for fraudulent misrepresentation, our Supreme Court has repeatedly held that the essential elements of an action in common-law fraud are "(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." Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). "The party asserting such a cause of action must prove the existence of the first three of these elements by a standard higher than the usual fair preponderance of the evidence, which higher standard [the court] has described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Id., 540.
In paragraph 10 of the first count, the plaintiffs allege sufficient facts, construed in the light most favorable to the plaintiffs, that they were induced to rely on a signed report required by law. However, the court agrees with the defendant's second claim as to insufficiency. The plaintiffs have failed to allege facts that would prove the defendant knew the representation was untrue. Moreover, the plaintiffs' allegations appear to commingle the elements of a negligent misrepresentation claim with one of fraudulent misrepresentation, inappropriately combining two different causes of action in one. In paragraph 11, the plaintiffs allege the defendant knew or should have known her representations to be false. It is not sufficient to claim the defendant should have known of the falsity of a representation in a claim for fraudulent misrepresentation; the plaintiffs must allege the defendant actually knew her statements were false. In contrast, a claim for negligent, or innocent misrepresentation, may be actionable if the declarant had the means of knowing, ought to know, or has the duty of knowing the truth. West Middle Turnpike Realty v. Hammersla, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 04-0083598 (January 27, 2005, Scholl, J.) (quoting Richard v. A. Waldman Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967). See also Frimberger v. Anzellotti, 25 Conn.App. 401, 410, 594 A.2d 1029 (1992).
Count Four
No Connecticut appellate court has definitively ruled on whether a one-time sale of real estate from an individual not engaged in the business of real estate falls under the ambit of CUTPA. The parties acknowledge a split among the superior court judges as to whether a single incident, and in particular, a single sale of a residential dwelling may be the subject of a CUTPA claim. However, this court agrees with the majority of superior court judges who have held that such actions do not fall under CUTPA. Although a single transaction may be the proper subject of a CUTPA count, the essence of the Act, despite its broad definition of "trade" and "commerce," is its effort to provide a remedy for the unfair practices purpose of an existing or continuing enterprise, not misconduct that might occur in the course of a one-time transaction by a private individual. See Crescenzo v. Camarota, CV 97-03964333S, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 97-03964333S (June 9, 1997, Silbert, J.) ( 19 Conn. L. Rptr. 611); Piantidosi v. MacGarvey, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 99-0174606S (May 26, 2000, D'Andrea, J.); Perugini v. Simo-Kinzer, Superior Court, judicial district of Waterbury, Docket No. CV 03-0180724S (February 2, 2004, Alvord, J.) ( 36 Conn. L. Rptr. 489); Kaplan v. Nuzzo, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 05-4013335 (November 9, 2005, Silbert, J.) ( 40 Conn. L. Rptr. 246); See also McCann Real Equities Series XXII, LLC et al. v. David McDermott Chevrolet, Inc. et al, 93 Conn.App. 486, 519-23, 890 A.2d 140 (2006) (holding that a verdict was properly directed in favor of defendant auto dealership which incidentally sold real estate because the auto dealership was not engaged in the business of selling real estate).
Accordingly, the motion to strike Counts One and Four of the plaintiff's complaint is granted.