Opinion
No. CV 09-5004845 S
November 10, 2009
MEMORANDUM OF DECISION
This is a decision on the defendant's motion to strike, dated July 17, 2009. By revised complaint dated July 5, 2009, the plaintiff, Jason Coe, brings suit against the defendants, Joseph M. DeLucia, Sr. and Rose DeLucia, relative to the plaintiff's purchase of the real estate known as 182 High Hill Road, Wallingford, Connecticut from the defendants. The plaintiff alleges four counts against the defendants: count one, fraud/intentional misrepresentation; count two, negligent misrepresentation; count three, innocent misrepresentation; and count four, "violation of C.G.S. section 20-327b."
Count four of the plaintiff's revised complaint alleges that "[o]n or about March 10, 2007, the Plaintiff entered into a contract with the Defendants whereby the Plaintiff would purchase from Defendants real estate located at 182 High Hill Road, Wallingford, CT (`The Property'). On or about March 10, 2007, prior to entering into the aforementioned purchase contract, the Defendants, acting through their agent, provided the Plaintiff with a signed `Residential Property Condition Disclosure Report' (`Report') in connection with the Plaintiff's potential purchase of The Property. Said Report, which was signed by Defendants, made various statements . . . On May 24, 2007, the Plaintiff consummated the purchase of the property. After the sale was consummated, the Plaintiff learned that there were in fact numerous problems and defects. Defendants knew that one or more of the above representations of fact which they made were false and/or one or more of the above representations of fact were made with reckless disregard for their truth. The Plaintiff acted on the statement(s) to his detriment in purchasing The Property . . . The conduct of the Defendants as aforesaid constitutes a violation of Connecticut General Statutes Section 20-327b."
On July 20, 2009, the defendants filed a motion to strike count four of the plaintiff's revised complaint and a memorandum in support thereof. The plaintiff filed an objection to the motion and a supporting memorandum on August 17, 2009. The matter was heard at short calendar on October 5, 2009.
I.
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
II.
In their memorandum of law in support of their motion to strike, the defendants argue that General Statutes § 20-327b "does not create a private cause of action." The defendants argue that although the plaintiff as a purchaser is "the one the act directly benefits," there is no indication of intent from the legislative history, explicit or implicit, to create a private remedy and it is inconsistent with the underlying purpose of the legislative scheme to assign additional rights or obligations under the statute.
In his objection to the defendants' motion to strike, the plaintiff argues that the Appellate Court has decided this issue in two cited cases and approved a statutory cause of action for knowing misrepresentation under § 20-327b. The plaintiff further argues that defendants rely solely on non-binding Superior Court case law, which this court should find unpersuasive.
General Statutes § 20-327b requires a seller of real estate in Connecticut to "provide a written residential condition report to the prospective purchaser . . ." Although the plaintiff here argues that § 20-327b provides a private right of action, no such express language is present in the statute.
In Oddo v. Warren, Superior Court, judicial district of New Britain, Docket No. CV 07 5003533 (January 3, 2008, Trombley, J.), the plaintiffs brought suit against the defendant sellers related to their purchase of a single-family home. In count two of their complaint, the plaintiffs alleged that "the defendants failed to comply with the requirements of the property disclosure statute in that they made false representations as to the statements of fact in the disclosure report, which were untrue and known by the defendants to be untrue in order to induce the plaintiffs to complete the purchase, which the plaintiffs in fact did to their detriment." Id. The court considered these allegations as being merged with the plaintiffs' breach of contract claim in count one. Id.
The court held that "[n]owhere in the provisions of the Property Condition Disclosure Act is a cause of action created which would provide the plaintiffs with any statutory remedy that would be separate and distinct from the common-law breach of contract action. This court is well aware of the Appellate Court's decision in Giametti v. Inspections, Inc., 76 Conn.App. 352, 357 (2003), in which the court refers to a cause of action under section 20-327b, however, the court ties any statutory cause of action to the common-law action based on intentional or `knowing' misrepresentation of facts upon which the seller has actual knowledge, which is the equivalent of a cause of action based on fraud. See Dockter v. Slovik, 91 Conn.App. 448, 457, cert. denied, 276 Conn. 919 (2005). In fact, the court concludes, in Giametti, at Page 362: `We are persuaded, therefore, that Section 20-327b does not preclude existing common-law actions for misrepresentations made by a vendor regarding the condition of residential property.' In that case, the court declined to accept the plaintiffs' negligent misrepresentation claim as, unlike the court has found in this case, there was no evidence that the plaintiffs actually relied on the defendants' representations." Id.
Similarly, in Steinhoff v. Woodward, Superior Court, judicial district of New London, Docket No. CV 549302 (August 5, 1999, Martin, J.) [25 Conn. L. Rptr. 241], the plaintiffs alleged in count seven that the defendants violated § 20-327b by "intentionally misrepresenting the existence of lead based paint" at the property. The defendants counter-argued that § 20-327b "does not give rise to a civil cause of action." Id. The court granted the defendants' motion to strike count seven, reasoning that "§ 20-327b does not explicitly provide for a private right of action. Therefore, in determining whether a private remedy is implicit in a statute not expressly providing one, the court must look at three factors: First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Citations omitted; internal quotation marks omitted.) Id.
The Steinhoff court examined § 20-327b under that three-part test, finding under the first tier that "the act directly benefits the plaintiffs . . ." Id. For the second tier of the test, the court found that "[t]here is no explicit provision in the language of . . . § 20-327b that the legislature either intended to create or to deny a private cause of action. There is, however, an indication in the legislative history that the statute was only intended to promote frank disclosures by a seller of real estate by requiring that his representations became part of the contract of sale," citing to 38 H.R. Proc., Pt. 19, 1995 Sess., pp. 6964-66, remarks of Representative Eberle. Id. The court concluded from the legislative history that "the disclosure requirement merely serves to facilitate the adjudication of contractual and tort claims under a contract of sale that currently exists under the law (i.e. fraudulent misrepresentation, intentional misrepresentation breach of contract), by requiring documentation of the representations made by a seller." Id. Finally, as to the third tier, the court found that "[a] review of the legislative scheme reveals that the underlying purpose of the statute is not to assign additional rights or obligations upon the parties, but as previously mentioned, to document the representations affixed to the contract of sale, all in the hope of avoiding needless litigation." Id.
The Steinhoff court concluded by pointing out that "the statute imposes a nominal penalty for the failure to furnish the written residential condition report, but not for misrepresentations made within the report, by requiring that a seller credit the buyer three hundred dollars at the time of closing. See General Statutes § 20-327c. Hence, since the statute does not specifically penalize a seller for misrepresentations made in the condition report, and since the statute requires that the condition report be attached to the contract to purchase, it follows that the legislature left home-buyers to their contractual and tort remedies when it comes to discrepancies within the residential condition report itself." Id.
The plaintiff relies on Giamatti v. Inspections, Inc., 76 Conn.App. 352, 824 A.2d 1 (2003), as authority for a statutory cause of action for a knowing misrepresentation in the disclosure report. In Giamatti, the Appellate Court stated that "[t]he text of [ § 20-327b] and the statute's legislative history require the conclusion that the legislature did not intend to preclude preexisting common-law actions for negligent misrepresentation. The statutory scheme contains no language to suggest that § 20-327b was intended to provide the exclusive remedy that a disappointed purchaser of residential property might have . . . Accordingly, the court was not authorized by § 20-327b to render judgment for the plaintiff for negligent misrepresentation." (Citations omitted.) Id., 361-62. The basis for the action in Giametti on which the Appellate Court based its decision was negligent misrepresentation, not a § 20-327b statutory cause of action, as the plaintiff has alleged in count four here.
In the present case, count four of the plaintiff's revised complaint seeks damages for a breach of § 20-327b where the "[d]efendants knew that one or more of the above representations of fact which they made were false and/or . . . made with reckless disregard for their truth." Count one of the plaintiff's complaint, sounding in "fraud/intentional misrepresentation," alleges the same knowing misrepresentation by the defendants as count four. As stated in Oddo v. Warren, supra, Superior Court, Docket No. CV 07 5003533, "[n]owhere in the provisions of the Property Condition Disclosure Act is a cause of action created which would provide the plaintiffs with any statutory remedy that would be separate and distinct from the common-law" fraud/intentional misrepresentation action. The only express statutory penalty related to the residential condition report is found in General Statutes § 20-327c, which provides for a three-hundred-dollar credit to the purchaser from the seller if the seller fails to provide said report. No penalty is provided for in § 20-327b in the event that misrepresentations are made within the report. As such, the plaintiff claims no statutory remedy in count four different from his remedy for common-law fraud/intentional misrepresentation as claimed in count one, and no relief may be granted on count four of the plaintiff's revised complaint under § 20-327b.
Accordingly, the defendant's motion to strike is granted.