Opinion
No. CV03-0483400S
January 17, 2007
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
On June 14, 2003, the plaintiffs purchased from the defendants, Mark and Kerri Phillips, the residential property known as 59 Todd Drive South in North Haven. They claim they were immediately confronted with water seepage problems in the house's lower level and brought this action against the sellers, Mark and Kerri Phillips and others. The counts directed at the latter have been withdrawn, leaving two counts against the sellers.
In their first count, the plaintiffs allege negligent misrepresentations in that the defendants failed to alert them to a condition affecting the value of the property; failed to perform a "reasonable inspection" so they could make a disclosure to the plaintiffs; remodeled over water damage and mold without identifying a problem; failed to supervise the work of subcontractors who hid the various problems.
The second count recites a variety of misrepresentations on which the plaintiffs relied to their detriment. The gist of this count is that the sellers covered over existing serious defects to conceal them, failed to disclose known defects, and misrepresented the condition of the house.
DISCUSSION I
The defendants rely on the fact that the plaintiffs hired a home inspector and proceeded to close despite the fact that the inspection revealed potential trouble spots. The defendants cite Giametti v. Inspections, Inc., 76 Conn.App. 352 (2003) to support their position, arguing that, as in that case, these plaintiffs did not actually rely on the defendants' alleged misrepresentations.
The plaintiff, Jeanne Mauri, testified that she relied on a variety of factors, all of which combined to induce her purchase.
Exhibit 1, the MLS information, describes this property as in "mint condition." It is described as "like new." An addendum listing new features includes new walls, new carpet in lower level and complete new interior painting.
However, the defendant, Mark Phillips, admitted that items listed were not all new. He had difficulty remembering when he did repairs to the walls in the lower level and other repairs. He indicated he expected the buyers to rely on his representations. He finally qualified his use of "new" as meaning new since he moved in. He purchased the property in 1999 and he stated he started the "repairs" right away.
The carpeting was installed six months before the sale, Phillips said. And, he never saw anything anywhere to suggest the premises had been subjected to water seepage, mold or rot. The court does not believe him.
Obviously, the description of "mint condition" and "all new" really meant it was done between 1999 and 2003. The numerous photographs offered into evidence by the plaintiffs depict deplorable conditions the defendants could not have been ignorant of.
Starting with the lower level carpeting, Mark Phillips said it was installed six months prior to sale. Ms. Mauri described it as new. In order to install that carpeting, the previous floor cover would have had to be removed. The plaintiffs' photos of what was found when the new carpeting, found soaking wet, was pulled back revealed evidence of water seepage and rot that had existed before the new carpet was laid.
Other photos depict clean, recently installed wood supports surrounded by water stained rotting wood.
Serious black staining of mold in a utility room was not seen by the plaintiffs nor their inspector because this area was crammed full of storage items when they visited the home.
The most extensive evidence of long-standing rot and mold caused by water seepage was found when the "new" walls were removed. Wood supports were stained and rotted through. Mr. Phillips professed no knowledge of this condition. He had decided to repair some holes punched in the sheetrock by covering the walls with another layer of sheetrock. However, an inspection report dated June 16, 1999 (Exhibit 34) indicates: "There is missing sheetrock in the living room, and lower level family room . . ." The defendants would therefore be able to see the supports and walls behind these areas. They claim they saw no water damage.
It is significant too that the plaintiffs' home inspector found the house was freshly painted. It was also so described by Ms. Mauri.
The court could go on for several more pages to describe what was uncovered by the plaintiffs, but that would be merely cumulative evidence to support the conclusion that these defendants had actual knowledge of serious defects and damage caused by long-standing water seepage. They performed a cosmetic transformation, designed to mislead these buyers and their inspector who had no way of knowing what existed behind the replacement walls, conveniently "freshly painted."
It should also be noted that there is a material representation in the disclosure form, Exhibit 2, wherein the defendants checked "No" in the section for "water, seepage, dampness," Sec. 15. Similarly they denied drainage problems and roof leaks, Sec. 28 and 17. These, too, appear to have been false statements. These conclusions negate the defendants' claim of contractual waiver.
II
Turning next to defendants' argument that there is no evidence of reliance, the testimony of Ms. Mauri is relevant. She visited the property and noted in her five visits the new condition described in the MLS offering. She obviously relied on what she saw and what she read. Her inspector could not have found the hidden defects so carefully disguised.
The court concludes that there is ample evidence to support a finding that the plaintiffs relied on the written MLS information and the physical appearance of the premises. It is further found that the hidden defects were not reasonably ascertainable by a visual inspection and that the defendants, with full knowledge of their existence, carefully kept them from the plaintiffs.
Similarly, it is noted that Ms. Mauri testified she would not have purchased the house had she known its condition. In support of her position, it is noted she has not done all the needed repairs because of the cost and was only able to remove the mold infested material because her husband's company helped him and did not bill for its services. The lower level remains in disrepair.
The court would note that the Giammeti case, relied on by the defendants, provides further guidance in this area.
At page 360, the court closes with:
The trial court properly concluded, therefore, that the defendant in this case had no statutory liability under § 20-327b. This result follows from the court's finding that she had no actual knowledge of any ant infestation.
In this instance, the court has found actual knowledge on the part of the defendants.
III
The plaintiffs also seek damages for emotional distress caused by the misrepresentations. Testimony on that issue was elicited from the plaintiff, Jeanne Mauri:
Claims for negligent misrepresentation have been brought in actions involving real estate transactions, see e.g., McClintock v. Rivard, 219 Conn. 417, 593 A.2d 1375 (1991). In Giametti v. Inspections, Inc., 76 Conn.App. 352, 824 A.2d 1 (2003), the court discussed a claim of negligent misrepresentation based on the infestation of carpenter ants in the purchase of a house. The trial court had concluded that, because the seller did not intentionally make any misleading statements or withhold information regarding the condition of the house when she executed the property condition disclosure report as mandated by General Statutes § 20-372b, the defendant was not liable under common-law theories of fraudulent misrepresentation and disclosure. Id., 357. The trial court did find, however, negligent misrepresentation by the seller on the disclosure form. The Appellate Court reversed stating that, even though the statute does not preclude common-law actions for negligent misrepresentation, in that case, the buyer could not prevail on that theory because there was no evidence that the buyer justifiably relied on any statements made by the seller. Rather, the seller had urged the buyer to obtain a professional inspection and that inspection was performed, which meant that the buyer would not be able to show reliance on any representations made by the seller.
A claim of negligent misrepresentation may be based on a defendant's failure to speak when he has a duty to do so. DePasquale v. Day, Berry Howard, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 92 0450218 (March 31, 1994, Berger, J.) ( 9 C.S.C.R. 550). "A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he 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 Houses, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Faillace v. Soderholm, Superior Court, judicial district of Fairfield, Docket No. CV 95 0322549 (October 27, 1997, Melville, J.) (claim of negligent misrepresentation may be based on a failure to disclose when one ought to know the truth and has a duty to speak).
With regard to a claim of intentional infliction of emotional distress, "four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result from his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Thus, it is the intent to cause injury that is the gravamen of the tort . . ." (Internal quotation marks omitted.) Drew v. K-Mart Corp., 37 Conn.App. 239, 251, 655 A.2d 806 (1995), quoting DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991). Whether conduct is extreme and outrageous is a question in the first instance for the court; however, where reasonable people may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Watt v. Ford Consumer Finance Co., Superior Court, judicial district of Fairfield, Docket No. CV 95 323572 (July 31, 1996; Hauser, J.).
To maintain a claim for negligent infliction of emotional distress, "the plaintiff [has] the burden of pleading and establishing that the defendant should have realized its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986). In Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 782 A.2d 87 (2001), the court discussed the elements that a plaintiff must prove for an award of non-economic damages for negligent infliction of emotional distress. The court stated that "to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." Id., 446. The court concluded that the trial court had failed to give the correct jury instruction based on Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978), which required that "the fear or distress experienced by the plaintiff be reasonable in light of the conduct of the [defendant]. If such a fear were reasonable in light of the [defendant's] conduct, the [defendant] should have realized that [its] conduct created an unreasonable risk of causing distress, and [it], therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the [defendant's] conduct, the [defendant] would not have recognized that [its] conduct could cause this distress and, therefore, [it] would not be liable." (Internal quotation marks omitted.) Id., 448-49. The Scanlon court reiterated that the "forseeability requirement . . . regarding the nature of the harm to be anticipated [by the defendant] [is] a prerequisite to recovery [by the plaintiffs] . . ." (Internal quotation marks omitted.) Id., 449.
Based on the facts in this case, it is found that the defendants' actions in covering up the defects of which they had knowledge was outrageous. This intentional conduct caused Ms. Mauri's emotional distress and that conduct exceeded "all bounds usually tolerated by decent society."
Further, it can be found that the defendants were guilty of negligent infliction of emotional distress in that its misrepresentations caused the distress and that result was something the defendants should have foreseen.
An examination of the photos showing what was uncovered in the lower level leaves no doubt that the buyers' distress, especially Ms. Mauri's, was predictable and justified. She described how upset and distraught she was when confronted with the conditions discovered, especially upon realizing the potential expense now facing her. Her reaction was a natural one for someone encountering these deplorable conditions.
CONCLUSION A.
It is the conclusion of the court that the defendants made both negligent and intentional misrepresentations about the condition of the house, that the plaintiffs relied on these representations to their detriment and should recover damages from the defendants.
B.
The plaintiffs are awarded $12,282.00, the sum expended to waterproof the lower level and install drains.
C.
The plaintiffs' estimate to do the remedial work on the lower level came in without objection and the court finds that the sum of $84,000, as detailed, is fair and reasonable.
D.
Though the plaintiffs were deprived of the full use of this lower level, no evidence was offered to address the value of such loss of use.
E.
The plaintiffs claim damages for emotional distress, caused by the unexpected problems confronting them and the financial cost to remedy the same, supports an award in favor of the plaintiff, Jeanne Mauri, for $25,000.00.
F.
The plaintiffs are entitled to taxable costs.