Opinion
NNHCV106016309S.
12-10-2012
Joe J. DAVIS et al. v. NEW ALLIANCE BANK et al.
UNPUBLISHED OPINION
WILSON, J.
FACTS
On December 26, 2010, the plaintiffs, Joe Davis, Patricia Godek and JD Country Stables, LLC (Stables), filed a twenty-one-count complaint against the defendants, NewAlliance Bank (bank), CTRE, LLC (CTRE), Calcagni Land Sales (Calcagni), Marri J. Mostad and Frances Silvestri. The complaint sounds in negligence, negligent misrepresentation, breach of an oral contract, breach of a written contract, breach of the implied covenant of good faith and fair dealing of an oral contract, breach of the implied covenant of good faith and fair dealing of a written contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The present motion for summary judgment was filed on behalf of CTRE and Silvestri, and they will be referred to collectively as the defendants, or individually by name. All other defendants will be referred to by name.
The complaint alleges the following facts. The plaintiffs were shown a listing for a property located at 1689 Whirlwind Hill Road in Wallingford (hereinafter the property) by the employees, agents, servants or independent contractors of the institutional defendants. The listing described the property as bank owned and included a 2, 711 square foot home, twenty-two-stall horse barn, nine paddocks, an outdoor riding ring and an indoor riding ring (hereinafter the indoor ring). Before entering into the purchase of the property, the plaintiffs were shown, on multiple occasions, the indoor ring. It measured approximately 15, 000 square feet and appeared as a completed frame structure with sheets of plywood attached to the roof. The existence of the indoor ring caused the plaintiffs to decide to purchase the property because of their decision to use the property as a horse farm facility. The plaintiffs submitted an offer to the bank which was accepted. The plaintiffs and the bank executed a contract for sale of the property. After acceptance of the offer, Silvestri and Mostad, acting within the course and scope of their employment as employees, independent contractors, agents, servants or members of CTRE and Calcagni, respectively, inspected the property. The indoor ring existed at that time. Closing occurred on October 28, 2008. Approximately one week after the closing, William Hesbach, the original builder of the indoor ring, informed the plaintiffs that the indoor ring had been demolished by or at the request of the bank and that the other defendants knew or should have known of the demolition prior to closing.
The facts are, in significant part, taken from the court's memorandum of decision regarding New Alliance's motion for summary judgment.
The defendants were negligent in that they allowed the indoor ring to be demolished, failed to inform the plaintiffs of the demolition, and assisted or aided in the demolition. Further, the defendants represented to the plaintiffs that there was and would continue to be an indoor riding ring as part of the sale, at least to the completed stage that was shown to the plaintiffs and described in the multiple listings. Such representations were false, the defendants knew or should have known them to be false, and the plaintiffs relied on such representations to their detriment and loss.
The defendants also promised, orally and in writing, that the indoor riding ring would be included as part of the sale of the property. They breached these promises when they failed to warn the plaintiffs that the indoor ring would be demolished, failed to inform the plaintiffs that the indoor ring had been demolished prior to the closing, assisted or directed the demolition of the indoor ring, failed to re-erect the indoor ring to the point where it had been previously constructed and failed to protect the structure from damage or demolition.
As a result of the defendants' actions, the plaintiffs have suffered damages including, but not limited to: the value of the property, loss of business income, loss of the ability to attract boarders, loss of the ability to charge reasonable rental for boarders, an inability to reasonably reconstruct the indoor ring without extensive or new costs and limitations on the number of days the plaintiffs can generate revenue.
On April 30, 2012, the defendants filed a motion for summary judgment on counts two, five, eight, eleven, fourteen, seventeen and twenty on the grounds of: 1) lack of standing of the LLC plaintiff; 2) failure to make any affirmative allegations of wrong doing against the defendant Silvestri; and 3) failure to prove the necessary elements of each claim. They submitted as evidence: 1) a deposition of the plaintiff Joe Davis; 2) a business inquiry detail regarding the plaintiff JD Country Stables, LLC; 3) the sales agreement between NewAlliance Bank and Davis and Godek; 4) an affidavit of the defendant Frances Silvestri; 5) an exclusive right to represent authorization between the defendants and the plaintiffs; 6) pictures of the indoor riding ring; and 7) a deposition of William Hesbach. The plaintiffs filed an objection to the motion for summary judgment on July 23, 2012. They submitted as evidence an NBC news report regarding Hesbach, an affidavit of Joe Davis, and a copy of the code of ethics and standards of practice of the national association of realtors. The matter was heard at short calendar on August 20, 2012.
Since the news report is unauthenticated, and likely inadmissible at trial, the court will not consider it. " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ... be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 233 n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
DISCUSSION
" Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
" On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ... It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008). The plaintiff " must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the " inferences which could be reasonably and logically drawn from them ..." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
The defendants first argue that JD Country Stables, LLC did not exist at the time of the alleged acts in each of the plaintiffs' claims, and therefore, it lacks standing in the present case. The plaintiffs admit that the LLC was created " very soon after the closing, " but argue that because the LLC was created by the individual owners of the property, the LLC may be considered a successor in interest, assignee in interest or a third-party beneficiary.
The defendants also argue that the plaintiffs have failed to make any affirmative allegations of wrong doing against Silvestri, upon which to base liability. The plaintiffs counter that paragraph eight of the complaint specifically alleges that Silvestri is an employee, independent contractor, agent, servant, or member of CTRE. Moreover, it is alleged that Silvestri was acting within the course and scope of the relationship.
Additionally, the defendants maintain that the plaintiffs have failed to satisfy the elements of the causes of action alleged. As to the negligence count, they argue that there is no evidence of a legal duty nor a breach thereof. As to the misrepresentation count, the defendants contend that there exists no evidence that they had advance knowledge of the demolition of the structure, nor is there any showing that the plaintiffs reasonably relied on the alleged misrepresentations. As to the oral contract claims, the defendants argue that the statute of frauds, General Statutes § 42-550(a)(4), bars a cause of action for the sale of real property based on oral promises. As to the written contract claims, the defendants contend that there is no written contract containing express language promising that the indoor ring would be included in the purchase of the property. Finally, as to the CUTPA claim, the defendants claim that the plaintiffs simply repeat their prior allegations, which are not supported by the facts or the law.
The plaintiffs counter by alleging the following. The defendants had a responsibility to adequately represent and advocate for the plaintiffs throughout the purchase of the property. As to the misrepresentation claim, the defendants did have advance knowledge of the demolition of the structure, as evidenced by the deposition and affidavit of Joe Davis and Silvestri's own affidavit. Further, the defendants' failure to advise the plaintiffs of their options as a result of this advance knowledge, prior to closing, was a proximate cause of the plaintiffs' damages. As to the oral contract claims, the defendants orally promised the plaintiffs that the purchase of the property would include the indoor ring, they breached this oral contract, and the statute of frauds is not a valid defense because possession after a change in ownership is sufficient to bring the oral contract out of the statute of frauds. As to the written contract claims, the multiple listing sales agreement and the quit claim deed were all in writing and referenced the indoor ring as an integral part of the agreement. Finally, the plaintiffs' CUTPA claim sufficiently alleges immoral, oppressive, unfair or improper trade practices.
I
This issue was previously addressed by this court in its memorandum of decision regarding NewAlliance Bank's motion for summary judgment, and accordingly, much of this section is derived from said memorandum.
The defendants raise the issue of standing of Stables in its motion for summary judgment. As standing implicates subject matter jurisdiction, the court will treat this part of the motion as a motion to dismiss. See Sethi v. Yagildere, 136 Conn.App. 767, 770 n. 6, 47 A.3d 892, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012) (" We note that, although the use of a motion for summary judgment may be a proper vehicle to raise issues of subject matter jurisdiction in some cases; see Manifold v. Ragaglia, 94 Conn.App. 103, 121 n. 11, 891 A.2d 106 (2006); generally, [t]he proper procedural vehicle for disputing a party's standing is a motion to dismiss. Cadle Co. v. D'Addario, 268 Conn. 441, 445 n .5, 844 A.2d 836 (2004). We see no reason to deviate from the general practice in the present case. Consequently, we treat the defendant's motion for summary judgment as a motion to dismiss" [internal quotation marks omitted]).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts ... If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 651-52.
" [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ... Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009). " The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). The defendants argue that Stables does not have standing because it has no interest in the property at issue and was not even in existence at the time of the sale of the property. The plaintiffs maintain that Stables is a successor in interest and, as such, has a derivative claim.
" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the [challenged action] ... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected ... The plaintiff has the burden of demonstrating that he is the proper party to invoke the court's jurisdiction." (Citation omitted; internal quotation marks omitted.) Sethi v. Yagildere, supra, 136 Conn.App. at 771.
The Appellate Court has held that " a successor, as applied to realty, is one who takes by will or inheritance, rather than by deed, grant, gift, purchase or contract. In contrast, a successor in interest is one who follows another in ownership or control of property ... and does not exclude those who take by deed, grant, gift, purchase or contract." (Citation omitted; internal quotation marks omitted.) Drazen Properties Limited Partnership v. E.F. Mahon, Inc., 19 Conn.App. 471, 475, 562 A.2d 1142 (1989).
In the present case, the defendants have submitted evidence showing that Stables was created after Davis and Godek received title to the property. Moreover, Davis testified in his deposition that the property has never been conveyed to Stables. The defendants have therefore met their burden of demonstrating that Stables does not possess a specific personal and legal interest that has been specially and injuriously affected by the defendants and thus, jurisdiction is lacking. Cf. Citibank, N.A. v. Lindland, 131 Conn.App. 653, 665-70, 27 A.3d 423, cert. granted, 303 Conn. 906, 31 A.3d 1180 (2011) (individual who was member of LLC did not have standing to bring motion to open judgment for refund of sale price of property after he transferred his interest in property to LLC). The plaintiffs argue that Stables is a successor in interest as either a successor, assignee or third-party beneficiary. However, they have produced no evidence, in the form of an assignment, will, contract or gift, written or otherwise, that would allow the court to draw such a conclusion. Therefore, the plaintiffs have failed to submit evidence that would undermine the conclusion that Stables lacks standing ... Accordingly, the defendants' motion to dismiss as to all counts pertaining to the claims of Stables is granted.
II
Claims against Silvestri
The defendants argue that the plaintiffs fail to allege any affirmative allegations of wrongdoing against Silvestri, but rather base all of their claims solely against CTRE. They contend that Silvestri is entitled to summary judgment in her favor as a result.
" Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." (Citation omitted.) Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 410, 279 A.2d 540 (1971).
" [T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ... [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Consequently, " the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Id. " If, however, the nonmoving party argues that any purported defects could be cured by repleading, and the moving party fails to demonstrate that, if the nonmoving party were permitted to replead, the legal deficiency underlying the motion for summary judgment would not be cured, the trial court should treat the motion for summary judgment as a motion to strike, under which the nonmoving party would be ‘ afforded the opportunity to replead upon the granting of the motion.’ American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 124-25, 971 A.2d 17 (2009)." Giannettino v. Scarpetti, Superior Court, judicial district of New Haven, Docket No. CV 09 5030562 (July 14, 2011, Woods, J.).
Here, because the plaintiffs argue that the alleged defects could be cured by repleading, and because the defendants have not demonstrated that said defects could not be cured by repleading, the court will treat the motion for summary judgment as a motion to strike, as it pertains to the defendants' contention that the defendants have failed to allege affirmative allegations of wrongdoing against Silvestri.
" It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). This court must take " the facts to be those alleged in the complaint ... and ... construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. at 252.
Here, each claim against CTRE in the plaintiffs' complaint incorporates by reference paragraphs two through ten of count one. Paragraph three of count one provides, " Frances M. Silvestri an employee and/or independent contractor and/or agent and/or servant and/or member of CTRE, LLC." Further, paragraph eight provides: " All individually named persons in this complaint, Frances M. Silvestri and Marri Mostad as well as representatives of the bank were acting within the course and scope of their employment or agency or representative capacity and/or as independent contractors." Paragraph one of count two, which is also incorporated by reference into every further count alleged against CTRE, acknowledges that CTRE offers services including " real estate purchase, sales, advise, consultation, relocation and related transactions ..." Also referenced in this paragraph are " members, independent contractors, employees, agents, apparent agents, representatives, and/or servants who were acting within the scope of their authority, agency, or employment in the furtherance of the interest of said CTRE, LLC." Additionally, Silvestri is named individually as a defendant. Reading the complaint in the light most favorable to the nonmoving party, the court infers that all counts that are alleged against CTRE are also alleged against Silvestri, and accordingly, the motion to strike is denied.
III
Elements of Each Claim
The defendants additionally argue that they are entitled to summary judgment as a matter of law on each count because there is no evidence to support the elements of the various causes of action alleged by the plaintiffs in their complaint.
A
Negligence
In count two, the plaintiffs allege that the defendants should be held liable for negligence for allowing the indoor ring to be destroyed and for failing to inform the plaintiffs of said destruction. The defendants argue that the plaintiffs have failed to allege or provide evidence of a legal duty or a breach thereof, and are unable to prove any one or more of the alleged acts of negligence or causal connection. The plaintiffs counter that, as a real estate broker and salesperson, the defendants owed the plaintiffs various responsibilities, and as a result of their negligence, the plaintiffs sustained various damages.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... [T]he existence of a duty of care is an essential element of negligence ... 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 ... There is no question that a duty of care may arise out of a contract ..." (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139-40, 2 A.2d 859 (2010).
" An essential element of any negligence action is the establishment of the defendant's conduct as a proximate cause of the plaintiff's injury ... The causal relation between the defendant's wrongful conduct and the plaintiff's injuries must be established in order for the plaintiff to recover damages ... In Connecticut, the test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries ... Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] ... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ... This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438-39, 528 A.2d 364 (1987).
Practice Book § 10-4 provides: " It is unnecessary to allege any promise or duty which the law implies from the facts pleaded." In the present case, the plaintiffs have alleged in their complaint that they were shown the subject property by CTRE, which was and is a limited liability company offering services including real estate " purchase, sales, advise, consultation, relocation and related transactions concerning commercial and residential real estate property ..." Additionally, the plaintiffs allege that delivery of these services involve " members, independent contractors, employees, agents, apparent agents, representatives, and/or servants ... acting within the scope of their authority, agency, or employment in the furtherance of the interest of said CTRE, LLC."
The defendants have provided the court with an exclusive right to represent buyer agreement between the defendants and the plaintiffs. The contract unambiguously sets forth the " broker's duties, " which include: attempting to locate the property, negotiating on the buyer's behalf for terms and conditions agreeable to the buyer, assisting in the purchase, exchange or lease of the property, and acting in the buyer's interest regarding the location and purchase, exchange or lease of the property.
See the defendants' memorandum in support of the motion for summary judgment, exhibit D, exhibit 1.
" A real estate broker is a fiduciary ... As such, he is required to exercise fidelity and good faith, and cannot put himself in a position antagonistic to his principal's interest ... by fraudulent conduct, acting adversely to his client's interests, or by failing to communicate information he may possess or acquire which is or may be material to his principal's advantage. A real estate broker acting as a subagent with the express permission of another broker who has the listing of the property to be sold is under the same duty as the primary broker to act in the utmost good faith ... This rule requiring a broker, or his subagent, to act with the utmost good faith towards his principal places him under a legal obligation to make a full, fair and prompt disclosure to his employer of all facts within his knowledge which are, or may be material to the matter in connection with which he is employed ..." (Citations omitted; internal quotation marks omitted.) Licari v. Blackwelder, 14 Conn.App. 46, 53-54, 539 A.2d 609, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988).
" Our state has codified these principles of law in its real estate licensing law; General Statutes §§ 20-311 through [20-329ff]; and in the regulations it has promulgated concerning the conduct of real estate brokers and salespersons. Regs., Conn. State Agencies §§ 20-328-1 through 20-328-18. Section 20-320 of the General Statutes provides for the suspension or revocation of a real estate license, as well as the levy of a fine, where a broker or salesperson has violated the code of conduct generally set out in the statute. Included in the proscribed conduct are the following: (1) Making any material misrepresentation; (2) making any false promise of a character likely to influence, persuade or induce ... [and] (11) any act or conduct which constitutes dishonest, fraudulent or improper dealings." Id., at 54-55.
Here, the plaintiffs argue that the defendants breached the duty owed to them as buyers because, at some point prior to the closing, they had knowledge that the indoor ring had been destroyed, and they failed to inform the plaintiffs of said destruction or inform them of the various options that may have been available to them. As previously noted, the defendants argue that the plaintiffs have failed to allege a legal duty or provide evidence of a breach thereof, and are unable to prove any one or more of the alleged acts of negligence or causal connection.
Because " [t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury; and [t]he existence of a duty of care is a prerequisite to a finding of negligence; in order to prevail, the plaintiffs must demonstrate that they adequately alleged that the defendants owed them a duty of care. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ... Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action." (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523 (2012).
Here, there is no dispute that the defendant CTRE, LLC, pursuant to the exclusive right to represent the buyer agreement, was the real estate broker for the sale of the subject property and Silvestri was its agent acting on its behalf. Both had a fiduciary duty to the plaintiffs and therefore a legal duty to exercise fidelity and good faith and to not make any material representations, false promises of a character likely to influence, persuade or induce, or engage in conduct which constitutes dishonest, fraudulent or improper dealings. Licari v. Blackwelder, supra. Accordingly, viewing the evidence in the light most favorable to the plaintiffs, the court finds as a matter of law, that the defendants had a fiduciary relationship with the plaintiffs and therefore owed a legal duty to the plaintiffs.
In addition, the court finds that the defendants have failed to show that no genuine issue of fact exists as to whether the defendants breached that duty by failing to inform the plaintiffs of the destruction of the indoor ring. In her affidavit, Silvestri states that she " did not, at any time prior to the closing, know that a demolition of the structure was being contemplated, and had no knowledge in advance of the closing, that the structure was destroyed." Also, the defendants claim that Davis, in his deposition, stated that he knew of no facts that substantiate any conclusion that the defendants knew that the structure was going to be demolished before closing. These statements, however, are insufficient to prove the nonexistence of a genuine issue of material fact, when viewed in conjunction with the other evidence submitted. For instance, in an affidavit submitted by the plaintiffs, Davis indicates that Silvestri told him at closing, but prior to transfer of title, that the indoor ring was taken down. This raises a question of fact as to when the defendants acquired knowledge of the destruction of the indoor ring, and whether they breached their duty by failing to prevent the destruction, and/or inform the plaintiffs of the destruction and their available options prior to the transfer of title.
The defendants further argue that there can be no causal connection between their alleged failure to inform the plaintiffs that the structure had been demolished, and the plaintiffs' alleged damages, because the plaintiffs discovered the destruction of the structure prior to the closing and proceeded with the purchase despite this knowledge. The record reflects, however, that the plaintiffs believed that the destruction was the result of hurricane-like winds or an act of god. The defendants have failed to show the nonexistence of a genuine issue of fact exists as to whether the alleged negligent acts had a causal connection to the plaintiffs' damages. There is no evidence to show that if the defendants had informed the plaintiffs that the indoor ring was intentionally destroyed prior to closing, or that they may be entitled to a price adjustment, the plaintiffs would have proceeded with the sale. Accordingly, the defendants' motion for summary judgment is denied as to this count.
B
Negligent Misrepresentation
In count five, the plaintiffs allege that the defendants should be held liable for negligently misrepresenting that an indoor riding ring, at least to the completed stage that it was shown to plaintiffs, would be included as part of the sale of the property. The defendants argue that they did not have advance knowledge prior to closing that the structure had been demolished and the plaintiffs have failed to show that they reasonably relied on the alleged misrepresentation.
The complaint classifies these allegations as a cause of action of " misrepresentation, " but does not specify whether said misrepresentation is negligent or intentional/fraudulent. While the defendants, in their brief, characterize the allegations as fraud, the allegations seem to follow the elements of negligent misrepresentation. In particular, paragraph thirteen of the complaint alleges that the defendants " knew or should have known " that their representations were false. (Emphasis added.) The court attributes much of this confusion to the poor fashion in which both the complaint and the briefs have been drafted in this case.
" Our Supreme Court has long recognized liability for negligent misrepresentation ... The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): 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 ... Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Citation omitted; internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 134 Conn.App. 203, 207-08, 38 A.3d 215, cert. granted, 304 Conn. 923, 41 A.3d 663(2012).
" Liability for negligent misrepresentation may be placed on an individual when there has been a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak ... Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 206, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).
Here, the plaintiffs claim that when the defendants showed the property to them, there existed a substantially completed indoor riding ring, which was an essential factor in their decision to purchase the property. The defendants do not dispute the fact that the riding ring did exist at that time, or that it was part of the property being sold. The plaintiffs further allege that they reasonably relied on the defendants' representations in deciding to purchase the property, and had they known that the ring had been intentionally destroyed prior to the closing, they would have either refrained from purchasing the property or, at the very least, they would not have agreed to pay the full price. See Davis affidavit. The defendants counter that it is undisputed that the plaintiffs knew that the ring had been destroyed prior to the closing but went through with the purchase regardless, and the plaintiffs may not now claim reliance on the alleged misrepresentations. This argument, however, fails to recognize the importance of the means by which the indoor ring was demolished, and the extent and timing of the defendants' knowledge of such. In his deposition, Davis stated that he assumed that the ring had been demolished by a " hurricane-like wind" because he had not been informed otherwise by the defendants or anyone else that it had been intentionally torn down. This raises a genuine issue of material fact as to whether the plaintiffs' actions were made as a result of their reasonable reliance on the defendants' alleged misrepresentations or omissions. Accordingly, the defendants' motion as to this count is denied.
C
Oral Contract Claims
Count eight, for breach of an oral contract, and count fourteen, for breach of an implied covenant of good faith and fair dealing, arise out of the alleged oral promises that the defendants made to the plaintiffs regarding the existence of the indoor riding ring upon the sale of the property. The defendants argue that no oral contract referencing the inclusion of the indoor ring ever existed, and even if it did, there is no evidence that the plaintiffs provided any consideration and, additionally, the plaintiffs' argument is barred by the statute of frauds. The plaintiffs counter that the defendants indeed knew that the riding ring was an integral part of the property, and by failing to adequately represent the plaintiffs' interests throughout the sale, they breached an oral contract promising that the indoor ring would be included in the sale. Further, the plaintiffs contend that the statute of frauds does not bar these claims because part performance takes such a contract out of the statute of frauds and they performed by taking possession of the property after a change in ownership.
" The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties ... If the minds of the parties have not truly met, no enforceable contract exists." (Citations omitted; internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn.App. 524, 534-35, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).
Averments contained in an affidavit that are merely denials of the allegations in a complaint " are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995). A party's conclusory statements, " in the affidavit and elsewhere ... do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
In the present case, the defendants rely on an affidavit of Silvestri to support their argument that there was never an oral contract promising that the indoor ring structure would be included as part of the purchase of the property. In paragraph twelve of said affidavit, Silvestri states: " Neither I nor Prudential had an oral agreement with or made any promises to Davis, Godek or Stables that the purchase and sale of the [p]roperty would include an indoor riding ring ... The listing which was prepared by defendant Marri Mostad stated that the property included an indoor riding ring which was started but not finished. Neither Prudential nor myself were parties to the contract of sale and did not guarantee or represent that the structures on the [p]roperty would be in existence at the time of the closing." The defendants also point to the deposition of Davis, where he testified that he knows of no facts to prove that Prudential or Silvestri assisted in the demolition or knew that the structure was going to be demolished before closing. These statements, however, are insufficient to negate the allegations of the plaintiffs' complaint, and to prove the nonexistence of a genuine issue of material fact. Silvestri's statement is conclusory, self-serving and constitutes a mere denial of the allegations in the complaint asserting the existence of an oral contract. As such, Silvestri's statements " are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, supra, 38 Conn.App. at 360. Further, Davis's statement, while it may certainly be valuable evidence to be considered and weighed by the factfinder, does not establish the nonexistence of a material fact upon which summary judgment may be rendered. This statement is also contradicted by Davis's affidavit, in which he avers that he was informed by Silvestri at the closing that the indoor ring had been destroyed, and that he felt that the other realtor knew about the destruction because " the other realtor stayed outside the closing and did not come in at all, particularly when the subject of the fact that the building had been demolished was mentioned."
As to the issue of the existence of consideration, " [t]he doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable ... Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Citation omitted.) State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973).
Here, as alleged in the complaint or inferred from the allegations therein, the defendants entered into an oral contract with the plaintiffs where they promised that the indoor ring would be included as part of the sale of the property. The defendants argue that they were " merely representing Davis and Godek as real estate agents in connection with their purchase of the property, " and that the plaintiffs' alleged consideration, by way of deposit and/or mortgage commitment, " was clearly in connection with the sales contract." The defendants' claim that there is no evidence that the plaintiffs have provided any consideration for the alleged oral contract is unavailing. The complaint, read in the light most favorable to the plaintiffs, establishes that the parties mutually agreed that the defendants would provide representation as real estate agents in the sale of the property. It can be inferred that, as is the normal custom in the real estate industry, the defendants would receive a commission for any potential sale in exchange. The plaintiffs have not submitted evidence to show that they did not receive, or did not expect to receive any type of compensation for their services, and therefore, have failed to establish the nonexistence of a genuine issue of fact with respect the presence of consideration in the alleged oral contract.
The plaintiffs have also alleged a breach of the covenant of good faith and fair dealing regarding the alleged oral contract with the defendants as to the indoor riding ring. " [I]t is axiomatic that the ... duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ... The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." (Citations omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004). " To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Id., at 433. " In accordance with these authorities, the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000).
" Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ... Bad faith means more than mere negligence; it involves a dishonest purpose ... [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain ..." (Internal quotation marks omitted.) Brennan Associates v. OBGYN Specialty Group, P.C., 127 Conn.App. 746, 759-60, 15 A.3d 1094, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011). " Bad faith is not simply bad judgment or negligence, but rather, it implies the conscious doing of a wrong because of dishonest purpose. Bad faith contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Froom Development Corp. v. Developers Realty, Inc., 114 Conn.App. 618, 628-29, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009). " [W]hether particular conduct violates or is consistent with the duty of good faith and fair dealing necessarily depends upon the facts of the particular case, and is ordinarily a question of fact to be determined by the ... finder of fact." (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn.App. 34, 47, 925 A.2d 334 (2007).
As there remains a genuine issue of material fact as to the existence of the alleged oral contract, there also remains a genuine issue of fact as to whether the defendants' conduct violated the duty of good faith and fair dealing. By submitting evidence that Davis believed the indoor ring had been destroyed by wind and that he later learned that the destruction may have been intentional, and known by the defendants, the plaintiffs raise a genuine issue of material fact as to whether there was a breach of the oral contract and whether the defendants acted in bad faith with respect to their contractual obligations.
The defendants argue that the statute of frauds bars the plaintiff's oral contract claims. The statute of frauds, codified in § 52-550(a), provides in relevant part: " No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property ...
" The doctrines of full performance by one party to a contract or part performance by the party seeking to enforce the contract for sale of real estate will take it out of the [s]tatute of [f]rauds." Scribner v. O'Brien, Inc., 169 Conn. 389, 403, 363 A.2d 169 (1975). " [T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties ... The acts must also be of such a character that they can be naturally and reasonably accounted for in no other way than the existence of some contract in relation to the subject matter in dispute ..." (Internal quotation marks omitted.) McNeil v. Riccio, 45 Conn.App. 466, 470, 696 A.2d 1050 (1997).
" It is generally held that partial or even full payment of the purchase price for the sale of land under an oral contract does not take the case out of the statute of frauds ... The reason usually given for this rule is that the purchaser normally may have restitution of the consideration paid so that his predicament does not warrant the application of an equitable doctrine designed to prevent the statute of frauds itself from becoming an ‘ engine of fraud.’ ... The construction of substantial improvements on the land by the purchaser, however, has been regarded as the strongest and most unequivocal act of part performance by which an oral contract to purchase land is taken out of the statute of frauds ... Usually the making of improvements has occurred in combination with possession, another significant circumstance ... Possession, however, is not a prerequisite, although it may be highly significant in establishing the reasonable reliance upon the oral contract which is essential." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 94-96, 439 A.2d 1066 (1982). In order for possession to be considered part performance, " it must first appear that the possession is of such a character as to be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject-matter in dispute...." Bradley v. Loveday, 98 Conn. 315, 320, 119 A. 147 (1922).
Here, the undisputed facts establish that the plaintiffs made full payment of the purchase price and took possession of the property. Thus, the defendants cannot prevail on the argument that the oral contract claims are barred by the statute of frauds. Accordingly, the defendants' motion for summary judgment is denied as to these counts.
D
Written Contract Claims
Counts eleven and seventeen for breach of a written contract and breach of an implied covenant of good faith and fair dealing, respectively, arise out of an alleged written promise by the defendants to the plaintiffs that an indoor riding ring would be included as part of the sale of the property. The defendants allege that there was never any written contract in which the defendants made such a promise, and the only written agreement they had with the plaintiffs was the buyer representation agreement, which does not contain any express language with regard to the indoor ring. The plaintiffs appear to counterargue that the multiple listing agreement, the sales contract and the quit claim deed all directly or indirectly referenced the inclusion of the indoor riding ring.
The court again notes that navigating both plaintiffs' and defendants' briefs and attempting to interpret and organize the arguments contained therein, was a difficult and tedious process.
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted .) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). " Whether a contract has been breached ordinarily is a question of fact ..." (Internal quotation marks omitted.) Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 242, 919 A.2d 421 (2007).
The plaintiffs' complaint expressly alleges that the defendants " in writing promised to the plaintiffs that as part of the sale and buy of this property that it would include an indoor riding ring more specifically referenced within this complaint ..." The only relevant written contract that has been provided between the plaintiffs and the defendants, however, is the exclusive right to represent buyer agreement. That agreement provides that the defendants will exclusively represent the plaintiffs in their purchase of " 1680 Whirlwind Hill, Wallingford, CT, " and provides various other terms of the agreement. The contract is signed by Silvestri, as well as the defendants Davis and Godek. The contract does not contain any additional language describing the property, particularly in reference to the inclusion of an indoor ring. The record, therefore, supports the defendants' argument that there is no evidence of a written contract between the parties that included express language promising the inclusion of an indoor ring. The plaintiffs have not provided the court with evidence to the contrary and, accordingly, have failed to show that a genuine issue of material fact exists as to this claim.
Additionally, the plaintiffs' claim that the defendants breached the implied covenant of good faith and fair dealing as to the written contract must also fail. As previously stated, " the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., supra, 252 Conn. at 793. As a result, the defendants' motion for summary judgment as to these counts is granted.
E
CUTPA Violation
Count twenty of the plaintiffs' complaint alleges that the defendants are liable for a violation of CUTPA due to its misrepresentations, breaches and negligence in depriving the plaintiffs of the indoor ring because the defendant knew that the ring would be demolished and failed to disclose it to the plaintiffs, while knowing that it was a fundamental, necessary and integral part of their decision to purchase the property. The defendant argues that summary judgment should be rendered on this count because it is nothing more than a repetition of all previously alleged acts of wrongdoing " with a CUTPA spin on them." The plaintiffs maintain that their allegations of misrepresentation, breach of contract, negligence and breach of the implied covenant of good faith and fair dealing are sufficient to state a claim under CUTPA.
CUTPA provides that " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). To enforce this provision, CUTPA provides a private cause of action to " [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use of employment of a [prohibited] method, act or practice ..." General Statutes § 42-110g(a).
" In determining whether certain acts constitute a violation of CUTPA, our Supreme Court has adopted the criteria set out in the Federal Trade Commission's cigarette rule: (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise— whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]." (Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 493, 977 A.2d 228 (2009), cert. dismissed, 303 Conn. 721, 36 A.3d 662 (2012). CUTPA is " remedial in character ... and must be liberally construed in favor of those whom the legislature intended to benefit." Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005).
In the present case, the plaintiffs allege in their complaint that the defendants are engaged in the business of providing real estate services, and qualify as persons under General Statutes § 42-110a(3). The plaintiffs further allege that the defendants' misrepresentation, breach of contract, negligence and breach of the implied covenant of good faith and fair dealing were unfair, deceptive and/or immoral and/or oppressive practices in the conduct of trading and/or commerce by the defendants. Such misrepresentations and deceptive acts by a real estate agent or agency may certainly be offensive to public policy, as established by statute, as well as unethical. This is supported by our state's codification of its real estate licensing law, General Statutes §§ 20-311 through 20-329ff, as well as Regs., Conn. State Agencies §§ 20-328-1 through 20-328-18.
In support of their argument that summary judgment should be rendered as to this count, the defendants again rely on the deposition of Davis, in which he states that he does not possess sufficient facts to substantiate the claims that the defendants knew that the indoor ring would be demolished before closing. Again, while this evidence may certainly have probative value that could be useful to a factfinder, it is insufficient to prove the nonexistence of a genuine issue of fact, upon which summary judgment may be rendered. " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Viewing the evidence in the light most favorable to the nonmoving plaintiffs, the evidence presented by the defendants is not enough to establish the nonexistence of a genuine issue of fact, and to remove this issue from the hands of the factfinder.
Accordingly, the defendants' motion for summary is denied as to this count.
CONCLUSION
For the foregoing reasons, with respect to JD Country Stables, the motion to dismiss for lack of subject matter jurisdiction is granted on all counts. With respect to Davis and Godek, the motion for summary judgment is granted as to counts eleven and seventeen, and denied as to all other counts.