Opinion
CV146051622S
03-31-2016
Alexandra Everson and David Everson, a minor by his next friend, Alexandra v. Donald W. Raymond et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO STRIKE (#123)
Robin L. Wilson, J.
I
STATEMENT OF PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
On May 26, 2015, the plaintiffs, Alexandra Everson and David Everson filed a six-count revised complaint against the defendants, Donald W. Raymond, Linda F. Raymond (Raymonds), H. Pearce Real Estate Company, Inc. (H. Pearce), Marcia Delfini (Delfini), L& P Real Estate, LLC (L& P) and W. Sean Lynch aka William Sean Lynch (Lynch). On July 7, 2015, the plaintiffs filed a Request for Leave to File Revised Complaint in which they requested leave of the court to file a revised complaint identical to the May 26, 2015 revised complaint, or alternatively to permit the plaintiffs to re-file their May 26, 2015 revised complaint to stand as the plaintiffs' operative pleading. On July 21, 2015, the defendants, H. Pearce and Delfini filed an objection to the request for leave to amend which was overruled by the court. No objection was filed by the defendants L& P and Lynch. Accordingly, the operative complaint is the May 26, 2015 complaint which alleges the following facts. The plaintiff, Alexandra Everson was the purchaser of and resided for approximately six months at 195 Pine Orchard Road, Branford, Connecticut (property). The plaintiff resided at said premises with her minor son, plaintiff, David Everson. The defendants, Donald Raymond and Linda Raymond were the former owners of the property, who resided there for a number of years and who sold the property to the plaintiff Everson. At the time of the sale of the property, the Raymonds were represented by a real estate agent Delfini who was the agent for the defendant, real estate agency, H. Pearce located at 130 Montowese Street, Branford, Connecticut. H. Pearce was the agency who listed the property for sale. Everson was represented by a real estate agent, Lynch who was an agent for the real estate agency L& P. Lynch and L& P represented Everson to help her find and purchase a home in Branford, Connecticut.
Prior to purchasing the property, plaintiff Everson resided in Texas and relied upon all of the disclosures from the defendants for accurate and truthful information about the property, in particular whether there were any water problems, to the extent that the same may not be fully observable by Everson or her home inspector. In reliance upon the representations of the defendants, Everson entered into a Real Estate Purchase and Sale Agreement (P& S Agreement) on or about November 14, 2012, to purchase the property for a sum of $465,000. At no time prior to Everson's purchase of the property did the Raymonds disclose the existence of any past water infiltration, mold, mildew, excessive humidity, or water leaks in their Residential Property Condition Disclosure Report, nor at any time prior to the closing date of the P& S Agreement. Soon after the purchase, Everson moved into the property on December 17, 2012, and shortly thereafter discovered that the property had sustained prior water infiltration and mold growth which was not apparent upon visual noninvasive inspection.
Upon further inspection, the plaintiff discovered that the Raymonds had performed repairs to address water problems including repairs after pumping several inches of water from the basement in April 2010, which was not disclosed in November 2012, as evidenced by certain building permits issued by the Branford Building Department to the Raymonds for work to address water leaks, water penetration, mold growth and other defects; and as evidenced by work without building permits to remodel the kitchen and repair water leaks; and by performing work on the roof and the skylights, the latter which had several layers of caulking or compound and multiple layers of paint to cover over prior leaks and mold; and said work also included repainting of the living room and/or den several times to repair and cover up water stains; and the oak floor had been resanded to even out buckling from moisture penetration; all of which the Raymonds did not disclose and/or concealed.
The plaintiff alleges that she had to hire contractors to perform repairs to remedy the water problem caused by the defendants' nondisclosure, and the property was saturated with mold, mold-forming mildew conditions in that the Raymonds knew or should have known that the property had conditions which could lead to the growth of mold, such as excessive humidity, water leakage, drainage problems and flooding, such that the condition produced a tangible smell. The plaintiff was forced to hire a mold inspector who measured and confirmed the existence of extensive mold and mildew conditions in the property.
Between December 17, 2012, and May 13, 2013, the plaintiff resided at the property with her son, David Everson, but was forced to vacate the property because the plaintiff and her son experienced health problems caused by severely compromised air quality from the mold condition. On or about May 13, 2013, the plaintiff could no longer tolerate her health problems and the health problems of her son, so that the plaintiff was forced to sell the property for the sum of $389,000, suffering an immediate economic loss of $66,993.77 from the sale of the property, together with closing costs of $5,008 in attorneys fees, mortgage interest and property taxes.
Count one is as to the Raymonds and sounds in negligent disclosure/misrepresentation and alleges that the Raymonds negligently failed to disclose their repairs as a result of the basement flooding in April 2010, and other water problems leading to an extensive mold condition throughout the property. Count two is as to the Raymonds and sounds in negligent disclosure/misrepresentation and incorporates paragraphs one through thirteen of count one. Counts three and four allege CUTPA violations against L& P and Lynch and H. Pearce and Delfini, respectively. Count five alleges breach of contract against the Raymonds, and count six alleges fraud in the inducement against the Raymonds.
On July 20, 2015, the defendants, L& P and Lynch, filed a motion to strike the third count of the plaintiffs' complaint, and a memorandum of law in support of the motion. The defendants argue that the third count of the plaintiffs' complaint is legally insufficient because this is a simple breach of contract and/or negligence claim and the plaintiffs have failed to allege sufficient aggravating circumstances to sustain a CUTPA claim against the defendants. On October 13, 2015, the plaintiff filed an objection to the motion and a memorandum in opposition. The plaintiffs argue that they have alleged sufficient aggravating circumstances in the third count to withstand a motion to strike. Oral argument was heard on the motion on March 28, 2016.
II
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). " 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." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The role of the trial court in ruling on a motion to strike is " to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party 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). " Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint [or a count in 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." Doe v. Board of Education, 76 Conn.App. 296, 299-300, 819 A.2d 289 (2003).
The defendants argue that the third count alleged against them contains allegations basically asserting that they allegedly either breached their real estate broker agreement or obligations and duties to the plaintiff Everson, or acted in a negligent manner in connection with representing the plaintiff Everson in her purchase of the property which is the subject of this action. The defendants argue that the allegations contained in count three do not allege any substantial aggravating circumstances beyond a mere breach of contract or assertions of negligence, to bring a viable claim under CUTPA.
The plaintiff Everson argues that she has alleged in count three that the defendants Lynch and L& P failed to disclose material information about the condition of the property. In particular, the property suffered from a substantial flood in April 2010, which was set forth in a Residential Property Condition Report available to Lynch and L& P on the Multiple Listing Service (MLS), and that neither Lynch nor L& P provided this material information to Everson. Everson argues that the defendants' misrepresentation or omission(s), if proven are sufficient aggravating circumstances upon which Everson bases her CUTPA claim. The plaintiffs argue that Everson had a right to rely upon her agents' conduct in representing her to purchase a new home. The defendants' failure to obtain this information or pass it on to Everson, is an aggravating circumstance which constitutes a CUTPA claim.
A
Violation of CUTPA Claim Based on Negligence
During oral argument, the plaintiff argued that her CUTPA count against the defendants, L& P and Lynch is not based upon a breach of contract, but rather is based upon negligent misrepresentation and therefore her CUTPA claim against L& P and Lynch is viable. Thus, the court will determine whether the plaintiff has alleged sufficient aggravating factors to establish a CUTPA violation based upon negligence. The defendant argues that the plaintiff has not alleged negligent misrepresentation but has alleged mere negligence in that L& P and Lynch acted in a negligent manner in connection with representing the plaintiff Everson in her purchase of the property.
CUTPA provides: " No 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). " It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (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-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 business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. (Internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 484, 871 A.2d 981 (2005)." Naples v. Keystone Building & Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010).
Count three of the plaintiffs' complaint incorporates paragraphs 1-13 of count one. Paragraphs 5, 6, 7 and 8 of count one are material to this court's determination of whether the plaintiffs have adequately alleged CUTPA and state the following in pertinent part: " 5 . . . Everson relied upon all of the disclosures from the defendants . . . Lynch and L& P for accurate and truthful information about the Property, in particular whether there [were] any water problems, to the extent that the same may not be fully observable by Everson or her home inspector . . . 6. In reliance upon the representations of . . . L& P and Lynch, Everson entered into a Real Estate Purchase & Sale Agreement . . . on or about November 14, 2012 to purchase the property . . . 7. At no time prior to Everson's purchase of the Property did the Raymonds disclose the existence of any past water infiltration, mold, mildew, excessive humidity, water leaks, in their Residential Property Condition Disclosure Report, nor any time prior to the closing date of the P& S Agreement . . . 8. Soon after Everson's purchase, Everson moved into the Property on December 17, 2012 and shortly thereafter discovered that the property had sustained prior water infiltration and mold growth which was not apparent upon visual noninvasive inspection . . ."
The third count further alleges that: " 14. The defendants, L& P and Lynch were real estate agents licensed within the State of Connecticut and were engaged in the business of representing buyers seeking to purchase residential properties and said defendants represented the plaintiff Everson in connection with her purchase of 195 Pine Orchard Road, Branford, Connecticut. 15. The defendants, L& P and Lynch violated Connecticut General Statutes § 42-110b et seq. by engaging in unethical, immoral, illegal and unscrupulous conduct in one or more of the following ways: a. The defendants failed to disclose that the prior owners of the Property, the Raymonds had water problems and leaks and mold problems including extensive flooding in the basement in April 2010, which was not disclosed on property disclosure forms which would have been evident upon a noninvasive inspection or apparent to someone residing at the Property or upon reasonable inquiry by said defendants; b. The defendants failed to ascertain from the defendants Raymonds' agent, H. Pearce Real Estate Company, Inc. that the Property being marketed had prior mold and mildew problems which could cause the plaintiff damages . . .; and c. Said defendants did not advise the plaintiffs of the prior listing in April 2010 through the co-defendants H. Pearce and Delfini, nor did said defendants disclose the substantial basement flooding in April 2010 which was available to or should have been discovered by said defendants from the property disclosures from the co-defendants Raymonds in April 2010." Count three further alleges that as a result of the defendants, L& P's and Lynch's conduct, plaintiff has suffered an ascertainable loss, and that plaintiff is a consumer and has sustained an ascertainable loss of money that she has paid for repairs to the property which she cannot recover, was forced to sell the property, suffered personal injuries and has had to incur additional costs to move from Connecticut back to Texas.
" Our Supreme Court has addressed negligence claims in the context of CUTPA, holding that 'the first prong [of the cigarette rule], by itself, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence . . . Negligent acts, in general, are not inherently immoral, unethical, oppressive, or unscrupulous. Negligent conduct supporting CUTPA claims usually involves negligent misrepresentation, see, e.g., Prishwalko v. Bob Thomas Ford, Inc., 33 Conn.App. 575, 636 A.2d 1383 (1994). CUTPA deals with actions that cause unjustified consumer injury rather than a personal injury based upon negligence. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69.' (Emphasis added.) Anzellotti v. National Amusements, Superior Court, judicial district of New Britain, Docket No. 546129, (February 20, 1996, Hennessey, J.)." Gray v. Sullivan Real Estate, Inc., Superior Court, judicial district of New Britain, Docket No. CV095012402 (May 18, 2010, Trombley, J.) .
" With regard to the first prong of the 'cigarette rule, ' the Connecticut Supreme Court has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). Under the second prong of the 'cigarette rule' [a]llegations that the [plaintiff] knew or should have known facts that he did not disclose, if proven, may be concluded to be unethical, immoral, oppressive, and unscrupulous . . . Moreover, knowledge of falsity, either constructive or actual, need not be proven to establish a violation of CUTPA. (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 108, 733 A.2d 809 (1999). For these reasons, this court concludes that a CUTPA claim can be based on a theory of negligent misrepresentation.
" In Abrams v. Riding High Dude Ranch, Superior Court, judicial district of Fairfield, Docket No. CV 97 0345046, (February 5, 1998, Skolnick, J.), the court held that '[t]he plaintiffs have alleged sufficient facts to demonstrate that the defendants were engaged in wrongful conduct, because the plaintiffs need only allege a single act of misconduct to bring a claim under CUTPA. See Cordtz v. Arbor National Mortgage, Superior Court, judicial district of Fairfield, Docket No. 317401, (March 10, 1995, Freedman, J.) (single act may support a legally sufficient CUTPA claim, as this view is consistent with the remedial nature of CUTPA).' The court found that 'the plaintiffs sufficiently alleged the elements of negligent misrepresentation and . . . therefore alleged more than a simple negligence claim . . .' (Emphasis added.) Id. " (Citations omitted; internal quotation marks omitted. Gray v. Sullivan Real Estate, Inc., supra, Superior Court, Docket No. CV095012402 [49 Conn. L. Rptr. 888, at *17].
" 'Where a complaint alleges that a defendant made a misrepresentation during the course of the defendant's business practice, with or without the intent to deceive or fraud, and that misrepresentation led a plaintiff to lose money or property, that plaintiff has alleged a cause of action under CUTPA. In the present case, the complaint alleges that the defendants presented the plaintiff with information which the defendants failed to confirm prior to passing the incorrect information on to the plaintiff. Despite the lack of intent to misrepresent the information to the plaintiff the complaint alleges that the defendants' negligent misrepresentations led the plaintiff to suffer monetary losses. Negligent misrepresentation suffices as a basis for a CUTPA claim and as an aggravating factor making a [negligence] action also the basis of a CUTPA claim.' (Emphasis added.) Friedlander Limited Partnership v. Cohen, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412547, (April 15, 2005, Skolnick, J.)." Gray v. Sullivan Real Estate, supra, Docket No. CV095012402 [49 Conn. L. Rptr. 888, at *19] .
The court in Gray v. Sullivan, supra, concluded that the plaintiff's allegation of negligent misrepresentation against the defendant Kelly Sullivan, president of defendant Sullivan Real Estate Agency was " more than one for mere negligence, [and could] be the basis for a CUTPA claim." The court therefore concluded that since the plaintiff had alleged a claim for negligent misrepresentation, he sufficiently pled a substantial aggravating factor to make out a CUTPA claim, based on the underlying negligence claim.
The defendants argue that the complaint does not allege negligent misrepresentation but rather mere negligence. " [T]he interpretation of pleadings is always a question of law for the court . . . Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 46, 58 A.3d 293 (2013).
" [A]n 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." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). Our Supreme Court has also " held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . 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." (Emphasis added; internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 681, 940 A.2d 800 (2008).
" 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." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 206, 932 A.2d 472, cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).
Although inartfully drafted, construing the plaintiffs' complaint in a light most favorable to them, and reading the complaint broadly, specifically paragraphs 1-13 of the first count which have been incorporated into the third count, and paragraph 15a-c of the third count, this court concludes that the plaintiffs have alleged a claim for negligent misrepresentation. More specifically, the plaintiffs have alleged that Everson " relied upon all of the disclosures from the defendants, L& P and Lynch for accurate and truthful information about the property, in particular whether there were any water problems, to the extent that same may not be fully observable by Everson or her home inspector; . . . the defendants failed to disclose that the prior owners of the property, the Raymonds had water problems and leaks and mold problems including extensive flooding in the basement in April 2010, which was not disclosed on property disclosure forms which would have been evident upon a noninvasive inspection or apparent to someone residing at the property or upon reasonable inquiry by said defendants; . . . the defendants failed to ascertain from the defendants Raymonds' agent H. Pearce . . . that the Property being marketed had prior mold and mildew problems which could cause the plaintiff damages . . .; [the] defendants did not advise plaintiffs of the prior listing in April 2010 through the co-defendants H. Pearce and Delfini, nor did said defendants disclose the substantial basement flooding in April 2010 which was available to or should have been discovered by said defendants from the property disclosures from the co-defendants Raymonds in April 2010." Here, the gravamen of the plaintiffs complaint is that the defendants L& P and Lynch failed to disclose water problems, mold and mildew contained in the property and that upon a reasonable inquiry, the defendants could have discovered the problems, however they did not do so. The plaintiffs further allege that in reliance upon the representations of the defendants L& P and Lynch she entered into the P& S Agreement and as a result of their failure to disclose the mold, mildew and water problems she suffered a pecuniary loss. The court concludes that the plaintiffs have alleged negligent misrepresentation, which is more than simple negligence, and have therefore alleged a sufficient CUTPA claim against the defendants.
The defendants, on the last page of their memorandum of law, not in their motion, argue that the plaintiffs do not plead any facts setting forth any reason why Lynch is being sued personally when he is merely an agent and employee of the defendant LLC. According to our rules of practice: " Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. " Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). The Appellate Court in Stuart, stated that although " the defendant gave several reasons for his challenge to the causes of action as alleged by the plaintiffs in his memorandum of law in support of the motion . . . [t]hose reasons . . . were not contained in the motion itself, and the fact that they were provided in the accompanying memorandum of law does not save the motion from being considered 'fatally defective.'" Id., 862. Here, the defendants did not include in their motion the reasons for the claimed deficiency of the plaintiffs' complaint regarding the lack of factual allegations that would support a claim against Lynch individually. Although the plaintiffs did not raise an objection, neither did the defendants adequately brief this issue. " It is well settled that [the court is] not required to review claims that are inadequately briefed . . . [The Appellate Court] consistently [has] held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . [F]or [a trial court] judiciously and efficiently to consider claims . . . raised . . . the parties must clearly and fully set forth their arguments in their briefs . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited . . . [Claims] which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by [the trial] court." (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 603-04, 10 A.3d 59 (2010); see Cooke v. Cooke, 99 Conn.App. 347, 353, 913 A.2d 480 (2007)." Nowacki v. Nowacki, 129 Conn.App. 157, 163-64, 20 A.3d 702 (2011). Since the defendants in the present case have failed to adequately brief the claim that the plaintiffs' complaint against Lynch individually is deficient, the court will consider it abandoned.
III
CONCLUSION
For the foregoing reasons, the defendants, William Sean Lynch's and L& P Real Estate, LLC's motion to strike count three of the plaintiffs' complaint is denied.