Opinion
No. WWM CV07 5001250-S
October 16, 2009
MEMORANDUM OF DECISION
This case illustrates the substantial risk and the unfortunate consequences of undertaking a business enterprise and entering into a commercial lease without the advice and assistance of an attorney. The plaintiffs, Theresa Fanion, Ronald Fanion, Autumn Fanion and Joshua Fanion, brought this action in twelve counts against the defendant, Ruth Radei, alleging breach of contract, foreclosure of a mechanic's lien, unjust enrichment, quantum meruit, negligent misrepresentation, intentional misrepresentation, fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, nuisance, violation of the Connecticut Unfair Trade Practices Act (CUTPA) and personal injury. On September 2, 2008, George Radei, administrator of the estate of Ruth Radei, was substituted as a party defendant and, thereafter, the defendant denied the material allegations of the complaint.
At the conclusion of their case-in-chief, the plaintiff's withdrew the count alleging personal injury.
The matter came before the court in May 2009 for a trial on the merits. Witnesses included Theresa Fanion, Ronald Fanion, Lynette Swanson, William Warzecha, Scott Nigro, Michael Colley and George Radei. The court finds the testimony of the plaintiffs, Theresa Fanion and Ronald Fanion, and the defendant, George Radei, to be credible in part and not credible in part and the testimony of Swanson, Warzecha, Nigro and Colley to be generally credible. The court has reviewed and considered the testimony, the exhibits and the parties' memorandum of law. After applying the law to the facts, judgment enters for the defendant.
FINDINGS OF FACT
In July 2005, after twenty years of working in the food service industry, the plaintiff, Theresa Fanion, decided to pursue her dream of opening a bakery. To that end, she and her family relocated from North Carolina and bought a house in Sterling, Connecticut. Thereafter the plaintiffs noticed a building for rent at 33 Ward Street, Moosup, and Ronald Fanion called the phone number listed on a sign in the front door. The defendant George Radei answered the phone and the two patties agreed to meet to view the premises. R. Fanion told G. Radei that he was interested in renting the building to use as a bakery. R. Radei indicated that he thought it was a good idea since there were no similar businesses in the area and that a food establishment had once been a tenant in the building.
The owner of 33 Ward Street was G. Radei's elderly aunt, Ruth Radei. Accordingly once R. Fanion expressed interest in the rental, G. Radei took R. Fanion to meet R. Radei. R. Fanion informed R. Radei that he was interested in leasing 33 Ward Street to use as a bakery. R. Fanion knew that a well on the property was the source of water for the premises so he also informed R. Radei that he wanted a water test done before he would agree to rent the building. R. Radei responded that she knew a state employee who could do a water test. R. Fanion, however, indicated that he and T. Fanion would take care of having one done.
At the time of the trial, Ruth Radei was deceased.
William Warzecha testified that on one or two occasions in the 1990s, R. Radei requested that he perform additionally testing of the water on behalf of new tenants.
T. Fanion contacted the Northeast District Department of Health (NDDH) and obtained a copy of their "red book" containing NDDH's rules, regulations and requirements for a food service permit. After speaking with Lynette Swanson and reviewing the red book, T. Fanion concluded that a basic profile water test was all that was required by NDDH. T. Fanion then contacted Premier Laboratory, LLC of Dayville and requested that such a test be performed. The results of that test showed that the water met all state standards for porability. Based on the results, the plaintiffs decided to go forward with their plans for a bakery and T. Fanion forwarded a copy of the test results to NDDH. Over the next several months, T. Fanion completed the additional NDDH requirements and in July 2006, she received approval to begin renovations. T. Fanion and R. Fanion financed these renovations by taking out a home equity loan on their residence in Sterling.
Swanson is a registered sanitarian employed by NDDH.
Prior to leasing the premises, T. Fanion and R. Fanion were aware that the building needed new water pipes. After entering into the lease, they also determined that the building needed new electrical wiring, duct work, wallboard and cement pads for the sinks. These improvements were paid for by the plaintiffs. In order to open as a bakery the building was also in need of equipment consisting of improvements to an existing walk-in freezer, a condenser, three base sinks, three hand sinks and a cold case for pastries. During this period, T. Fanion also had a telephone installed and flyers, menus and gift certificates printed. Additionally she secured insurance and began to order food. T. Fanion and R. Fanion met with R. Radei on a weekly basis to keep her apprised of the progress and the extent of the renovations undertaken by the plaintiffs. As the summer wore on, the plaintiff's costs grew to forty-five percent higher than their budget.
Before the new pipes were installed, R. Fanion jury rigged a garden hose to a water source outside of the building and used the water for mixing cement, mixing grout and daily cleanup.
In addition to marketplace insurance, in April 2006, T. Fanion also purchased workers' compensation insurance.
Sometime in August 2006, a former tenant of 33 Ward Street, who T. Fanion later learned was Michael Colley, approached her outside of the building. Colley told T. Fanion to have the water tested and T. Fanion responded that she had done so and the test was okay. Colley then advised her to have it tested again and then walked away. The plaintiffs ignored Colley's warning and did not have the water retested.
The original opening date was anticipated to be September 2006, but unanticipated additional work necessitated that the date be pushed back to December 2006. By early December, all of the renovations had been completed and a certificate of occupancy and NDDH food service permit had been obtained. Shortly thereafter, on its own, the department of environmental protection contacted NDDH to advise that there was a issue with respect to the potability of the water at 33 Ward Street. The department's action caused Swanson to advise T. Fanion by letter that NDDH was revoking its permit. Attached to Swanson's letter were copies of letters dated September 1998 and August 31, 2004, from the department to R. Radei, as well as the results of a water test dated August 23, 2004, informing R. Radei of the presence of volatile organic compounds and the non-potability of the water at 33 Ward Street.
On a prior occasion the department had made a similar notification to NDDH, but Swanson was not aware of this during her dealings with T. Fanion.
Also introduced as evidence at the trial were copies of letters sent by the department to R. Radei and dated March 7, 2005, July 19, 2004, August 9, 1996 and March 11, 1996. Each of these letters advises R. Radei of the presence of volatile organic compounds in the water at 33-35 Ward Street.
In response, T. Fanion contacted Connecticut Water Company to determine the cost of connecting 33 Ward Street to public water and was informed that the cost would be approximately $35,000. Thereafter T. Fanion and her father met with R. Radei and G. Radei to discuss the water situation. T. Fanion told them that she would not pay for such an installation and moreover, she could not afford to pay for the installation. At around the same time, R. Fanion met separately with R. Radei and G. Radei and told them that he wanted the building connected to the public water system.
After meeting with T. Fanion, G. Radei contact Connecticut Water who informed G. Radei that the cost would be $20,000 or $25,000 G. Radei then called William Warzecha, a supervising environmental analyst for the department, to ascertain what other alternatives were available. Warzecha provided G. Radei with the name of two water companies who could install water filter systems which would be acceptable to the department. As a result, in early February 2007, R. Radei contacted Aqua Pump Co, Inc. to inquire about the installation of a carbon filter water system and 0. Radei then faxed a copy of the December 5, 2006 water test to Scott Nigro, an employee of Aqua Pump. Nigro determined that to address the presence of the volatile organic compounds, a three stage filter system was needed at a cost of $3,500. Such a system would also require periodic maintenance in the amount of six hundred dollars, at a frequency determined by the amount of water used. R. Radei decided to accept Aqua Pump's written proposal and accordingly she signed and faxed the proposal back to Nigro. On or about February 14, 2007, G. Radei observed that the electric meter had been turned off at 33 Ward Street. As a result, G. Radei contacted Nigro and cancelled the installation of the water filter system. Thereafter, R. Radei called T. Fanion on numerous occasions, but was unable to reach her. R. Radei left several messages asking T. Fanion to call her to discuss the water situation, but T. Fanion did not return any of R. Radei's calls. At trial, T. Fanion admitted that she had been contacted by R. Radei but did not return her calls.
Warzecha testified that this cost is exorbitant. Moreover, since 33 Ward Street was further than two hundred feet from an existing water line, R. Radei was not required to connect to the public water supply.
Once the wiring was installed, the plaintiffs had CLP turn on the electricity.
Manganese was also detected. The presence of manganese has no effect on the potability of the water at 33 Ward Street, but necessitated the installation of a separate filter to maximize the life of the carbon filter.
Nigro testified that Aqua Pump has been installing carbon filter systems for at least the last fifteen years and has had very successful results in addressing volatile organic compounds. Nigro also testified that Aqua Pump has installed such systems for the state of Connecticut as well as private customers.
Once the wiring was installed, the plaintiffs had CLP turn on the electricity.
On or about February 15, 2007, T. Fanion and R. Fanion abandoned 33 Ward Street, but to this day still retain a key to the building. They removed all of their personal property, but left the fixtures in place. T. Fanion later learned that 33 Ward Street had been vandalized and the fixtures, including the copper water lines, had been stolen. T. Fanion testified that she attempted, without success, to sell the personal property on craigslist. She further testified that she made no attempts to remove any of the fixtures as she could not afford the expense of hiring a truck and a moving crew.
At the trial, T. Fanion testified that the installation of a carbon filter system would not be acceptable to her because it necessitated "too much risk." T. Fanion was aware that filter systems require periodic testing and believed that a failed test would result in an immediate shut down of the business and attendant adverse publicity. Swanson testified that a failed water test would not result in an immediate closure of a business. NDDH's procedure in the event of a failed water test is to notify the occupant, advise them to switch to bottled water and to work with them to bring the system into compliance. Only if the system cannot be brought into compliance would NDDH order a shutdown of the premises and a posting of its order.
According to Swanson, water filter systems are required to be tested quarterly and the tests results must be forwarded to NEDDH.
Additional facts will be discussed as necessary
DISCUSSION A. Breach of Contract
In the first count, the plaintiffs allege that the defendant breached their contract by failing to provide a potable water supply; by leasing the premises as a bakery and by allowing the plaintiffs to improve the premises despite an unuseable water supply. These claims implicate the warranty of habitability, the implied warranty of fitness and the duty of good faith and fair dealing.
The plaintiffs also claim that R. Radei owed the them a duty under Gen. Stat. § 47a-7 to provide a safe and suitable premises. Section 47a-7 does not, however, apply to commercial property. See Gen. Stat. § 47a-1 and the definitions contained therein.
". . . [I]n commercial leases . . . the landlord does not impliedly warrant the [habitability] of the premises at the outset of the term or impliedly promise to repair the premises during the term of the lease." Powell on Real Property, Vol. 2, Ch. 17a, § 17A.01[2][b]. Further, "Connecticut does not recognize [an implied warrant of fitness] in commercial leases. While some states have expanded [a warranty of fitness] to commercial leases . . ., the general rule, adopted by the majority of states, is that a right to use commercial premises for a specified purpose does not ordinarily imply a warranty on the landlord's part as to the fitness of the premises for the use . . . Castelvetro v. Mills, Superior Court, judicial district of New Haven, Docket No. 320396 (January 31, 1994, Gray, J.) [ 11 Conn. L. Rptr. 29]. Additionally, "[t]he fact that [a] lease designates the use to which the premises are to be put does not imply a warranty that they are or will continue to be fit for such use . . . In the absence of warranty, deceit or fraud the tenant has the duty to examine the premises to determine its adaptability for the desired use." (Internal quotation marks omitted.) Friedman on Leases, Vol. 3, Ch. 27, § 27:4.2.
"[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 . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Whether a party has acted in bad faith is a question of fact, subject to review only for clear error." (Citations omitted; internal quotation marks omitted.) Renaissance Management Co, Inc. v. Connecticut Housing Finance Auth., 281 Conn. 227, 240, 915 A.2d 290 (2007)." . . . [A] commercial lease [does, however,] impose a duty of good faith and fair dealing on the landlord and tenant McKee Realty, LLP v. Fawns Plus III, LLC, Superior Court, judicial district of Hartford, Docket No. 134356 (January 9, 2006, Bentivegna, J.). See Warner v. Konover, 210 Conn. 150, 154-55, 553 A.2d 1138 (1989).
In the present case, the plaintiffs had the duty under our law to inspect the premises for its desired use and the water contamination was discoverable by them on reasonable inspection, i.e., an appropriate water test. Thus, in the absence of deceit, fraud or bad faith, the plaintiffs bore the risk of this condition. The court does not credit R. Fanion's testimony that both II. Radei and G. Radei represented to him that the water in the building was "fine." Although R. Radei did not give the plaintiff's copies of the previous water tests, she did offer to provide the name of the state employee who, at her request, had conducted previous tests for other tenants. R. Fanion, however, replied that he would hire his own tester. Under these facts, the court finds that neither R. Radei or G. Radei ever warranted to the plaintiffs the habitability of the premises or its fitness for use as a bakery. Nor does the court find fraudulent misrepresentation, concealment of the condition of the water or bad faith on the part of the defendant. Accordingly, the plaintiff has failed to prove that the defendant breached the contract.
B. Mechanic's Lien
Next the plaintiffs claim that they are entitled to a mechanic's lien for the construction labor and materials which they expended on the premises between January 1, 2006 and December 22, 2006. "General Statutes § 49-33(a) provides in relevant part: If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building . . . and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building . . . has been erected . . . the building, with the land on which it stands . . . is subject to the payment of the claim." (Internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 182 n. 4, 942 A.2d 1028 (2008).
A mechanic's lien against the owner of land is valid if the underlying claim is "(1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials." (Internal quotation marks omitted.) Hall v. Peacock Fixture and Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984). "The mere granting of permission for work to be conducted on one's property has never been deemed sufficient to support a mechanic's lien against the property." Id., 295. See Brian's Floor Covering Supplies, LLC v. Spring Meadow Elderly Apartments, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375810 (March 22, 2006, Richards, J.). "[A] landowner does not subject his property to a mechanic's lien by simply allowing work to be done on it . . . Nor does the owner's knowledge that the work is being done subject the property to a mechanic's lien . . . The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor . . . Although an express contract is not necessary for such a consent, the services must be furnished under circumstances indicating an implied contract by the owner to pay for them." (Citations omitted; internal quotation marks omitted.) Centerbrook, Architects and Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591. 620 A.2d 127 (1993).
In the present case, there was no evidence adduced at the trial that R. Radei agreed or consented, either explicitly or impliedly, to be financially liable for the plaintiff's improvements to her building or for the plaintiff's labor. Indeed, in her testimony, T. Fanion conceded that R. Radei never agreed to pay the costs of the electrical wiring or the plumbing and never agreed to compensate the plaintiffs for their labor. The court concludes, therefore, that the improvements and labor were voluntary and the plaintiffs cannot now expect to be paid. The mere granting of permission for work to be conducted on one's property has never been deemed sufficient to support a mechanic's lien against the property. Accordingly, this claim fails.
C. Unjust Enrichment
In the third count, the plaintiffs claim that they made improvements to the premises owned by R. Radei in the amount of $90,863.25, that R. Radei has failed to pay for these improvements and that she has been unjustly enriched thereby.
"Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). See Rossman v. Morasco, 115 Conn.App. 234, 974 A.2d 1 (2009).
"[A] finding of a failure to pay is insufficient for a finding of unjust enrichment. There must be a finding that the failure to pay was unjust . . ." (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, Superior Court, judicial district of New Haven, Docket No. CV 95 0372611 (April 8, 1997, Lacari, J.) ( 19 Conn. L. Rptr. 143). "The question whether services were performed without expectation of monetary compensation, the parties having understood they were being gratuitously rendered or whether it can be reasonably implied that payment was in the contemplation of the parties is one of fact to be gleamed from the circumstances of the particular case . . . It is the expectation of the parties existing at the time the services were rendered or the benefits conferred that controls . . . If at the time the services were originally rendered they were intended to be gratuitous or as an accommodation . . . and they were tendered without any expectation of remuneration, they cannot afterwards be converted into an obligation to pay their reasonable value . . ." (Citation omitted.) McKosky v. Plastech Corporation, Superior Court, judicial district of New Haven, Docket No. 426036 (June 13, 2001, Blue, J.). "To recover in unjust enrichment the plaintiff must establish that the defendants received a benefit, the plaintiff was not a volunteer [but] expected to be paid, and the plaintiff would suffer a detriment." Southern New England Telephone Co. v. JB Motor Car Corp., Superior Court, judicial district of New Haven, Docket No. CV 03-0477615 5 (December 23, 2003, Meadow, J.T.R.)
In the present case, when the plaintiffs leased the premises, they were aware that extensive work would be required to make it useable as a bakery. There was no evidence adduced at the trial that the parties ever discussed who would bear the costs of the improvements, that the plaintiffs ever requested reimbursement for the improvements or that R. Radei ever agreed to pay for the improvements. In the complete absence of such evidence, the court cannot conclude that at the time the services were rendered and the improvements conferred, the plaintiffs ever intended or expected to be compensated. Moreover, the evidence shows that within months of their abandonment of the premises, the premises had been vandalized and most of the improvements had been stolen. Thus there is no evidence that the defendant ever benefitted by the improvements.
D. Quantum Meruit
In the fourth count, the plaintiffs allege that R. Radei knowingly accepted the improvements, received the value thereof and has not paid for them. "Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in Fact . . . Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement . . . Quantum meruit literally means `as much as he has deserved' . . . Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services . . ." (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).
"Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . . Such contracts are determined from evidence of the parties' course of conduct which implies a promise to pay for the services rendered. The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing . . . that [it] would be compensated in the future, impliedly promised to pay . . . for the services . . . rendered." (Citations omitted.) Burns v. Koellmer, 11 Conn.App. 375, 383-84, 527 A.2d 1210 (1987). See Stewart v. King, Superior Court, judicial district of New Haven, Docket No. CV 075008439 (September 17, 2008, Zoarski, J.).
In the present case, the plaintiffs have established only that the defendant had knowledge of the improvements and repairs being made, but have failed to establish that the defendant said or did anything evincing an intent to compensate the plaintiffs for their improvements to the premises. Thus the plaintiffs have failed to prove that the parties' course of conduct established the existence of an implied promise for payment. Accordingly this claim fails.
E. Negligent Misrepresentation
In the fifth count, the plaintiffs claim that R. Radei knew or should have known that the premises were unsuitable for the tenancy, that the plaintiffs would rely on her representations of the suitability of the premises and that the plaintiffs did rely on R. Radei's representations and omissions.
"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." Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "Whether a claim of . . . negligent misrepresentation is a question of fact." (Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 502, 977 A.2d 228 (2009).
"Liability for negligent misrepresentation may be placed on an individual [or entity] 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). "[A] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose. (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 180, 757 A.2d 14 (2000).
In the present case, the court does not credit R. Fanion's testimony that R. Radei and G. Radei both represented that the water was "fine." Additionally in the absence of a warranty of habitability, R. Radei had no duty to disclose this defect. Further the evidence also shows that R. Radei offered to give the plaintiffs the name of a prior tester and that on other occasions R. Radei had requested this individual perform additional tests for other tenants. The court, therefore, does not find bad faith on her part. Moreover, since the plaintiff's themselves undertook to have the water tested, it is obvious that they did not rely upon R. Radei's representations or omissions. Finally, the plaintiffs have also failed to prove harm in that they failed to introduce any evidence that had they known of the condition of the water, they would not have rented the premises in January 2006 and undertaken any improvements thereafter.
F. Intentional and Fraudulent Misrepresentation
In the sixth and seventh counts, the plaintiffs allege that R. Radei had actual knowledge that the water was contaminated and unsuitable for their purposes, yet led the plaintiffs to believe that the premises were suitable.
"[A]t common law, fraudulent misrepresentation and intentional misrepresentation are the same tort." Kramer v. Petisi, 285 Conn. 674, 684 n. 9, 940 A.2d 800 (2008). "Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact . . . The party claiming fraud . . . has the burden of proof . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 521-22, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).
"The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004).
As previously state, the court finds not credible R, Fanion's testimony that R. Radei and G. Radei represented that the water was potable, or otherwise stated or misrepresented any facts as to the condition of the water. Accordingly the plaintiffs have failed to establish the first element of a cause of action in fraud and cannot succeed on their claims.
G. Intentional Infliction of Emotional Distress
In the eighth count, the plaintiffs allege that R. Radei knowingly permitted the plaintiffs and their minor children to drink the water at the premises, that this conduct was extreme and outrageous, that R. Radei knew or should have known that emotional distress would result and that the plaintiffs suffered emotional distress.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! I Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrot v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). See Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
In the present case there is no evidence before the court that R. Radei or G. Radei intended to cause the plaintiff's emotional distress or knew that emotional distress was the likely result of the plaintiffs' infrequent and minimal consumption of the water. There is evidence, however, that R. Radei knew the plaintiffs intended to test the water. Thus when the plaintiffs began to make improvements to the building, she was entitled to assume that they were satisfied with the results of the testing which they had performed. Moreover there is evidence that when R. Radei learned that the water was not potable, she immediately undertook to remediate the condition. Accordingly this court additionally does not find that the defendant's conduct was extreme and outrageous and this claim fails.
H. Negligent Infliction of Emotional Distress
In the ninth count, the plaintiff alleges that R. Radei's failure to disclose the condition of the water created an unreasonable and foreseeable risk of emotional distress and the plaintiffs suffered emotional distress.
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).
In the present case, the plaintiffs informed K. Radei and G. Radei that they intended to have the water tested. In response, R. Radei offered to provide the name of a state employee who had performed such tests in the past, but the plaintiffs declined her offer. Shortly thereafter, the plaintiffs embarked on numerous improvements to the premises. As stated previously, from these facts K. Radel could have reasonably inferred that there was no issue with the water. The plaintiffs have thus failed to prove that the defendant should have realized that her failure to disclose the prior water test results involved an unreasonable risk of causing emotional distress.
1. Nuisance
Next the plaintiff alleges that the contaminated water created a continuing and unreasonable condition which barred the plaintiff's use of the premises as a bakery and caused the plaintiff's damage. "A private nuisance is a non-respassory invasion of another's interest in the private use and enjoyment of land . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
"The Connecticut Supreme Court [has] adopt[ed] the basic principles of § 822 of the Restatement (Second) of Torts and conclude[d] that in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence. Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case." (Citations omitted; internal quotation marks omitted.) Id., 361. See Kinsale, LLC v. Tombari, 95 Conn.App. 472, 897 A.2d 646 (2006).
Furthermore, "the plaintiff in a private nuisance case must allege that the defendant had control of the property in question, either through ownership or otherwise." Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket. No. CV 07 5013602 (April 24, 2008, Robinson, J.) ( 45 Conn. L. Rptr. 452). "In lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant `uses' property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance. For example, a landlord's liability for nuisance caused by a defective condition on leased property is determined, in part, by whether the portion of the property on which the condition exists is in the landlord's control or the tenant's." (Internal quotation marks omitted.) Id., 184. See Baker v. Cheshire, supra, 45 Conn. L. Rptr. 452. Accordingly, a tenant may bring a claim against a landlord in nuisance if the purported defective condition is located in a common area under the control of the landlord.
In the present case the court need not decide whether R. Radei created a nuisance because even if she did so, the plaintiffs have failed to prove damages. The evidence adduced at the trial shows that the plaintiffs had hoped to open the bakery by September 1, 2006. That date was subsequently pushed back to December 1, 2006 and then to January 1, 2007. On December 22, 2006, the plaintiffs learned that their food service permit had been revoked by NDDH as a result of contaminated water. Other evidence shows that K. Radei then contracted with Aqua Pump to install a water filtration system by February 15, 2007. Scott Nigro, an employee of Aqua Pump, credibly testified this filtration system would have remediated the contamination. Accordingly the court finds that the non potability of the water interfered with the plaintiff's use of the property only from January 1, 2007 through February 15, 2007. Therefore, if the plaintiffs are entitled to damages for nuisance, it is limited to this period of time and to compensating the plaintiffs for any lost profit. At trial the sole evidence of lost profit was the plaintiff's testimony of her opinion as to what the profit would have been. The court finds this evidence too speculative in light of the fact that the bakery was a brand new business that had not commenced operation. Accordingly this claim of the plaintiffs also fails.
J. CUTPA
Finally the plaintiff alleges that R. Radei committed unfair trade practices for all of the reasons previously set out and for her failure to notify the plaintiffs of the contamination of the water in violation of Gen. Stat. § 22a-6u(i).
General Statutes § 42-110a(4) provides: "`[t]rade' and `commerce' means the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." (Internal quotation marks omitted.) Stearns Wheeler, LLC v. Kowalsky Brothers, Inc., 289 Conn. 3, 12 n. 13, 955 A.2d 538 (2008). "Unless the activities of an owner of real property are otherwise excluded from the application of CUTPA, the leasing or renting of real property falls within the scope of the act." K. Langer, J. Morgan and D. Belt, 12 Connecticut Practice Series: Unfair Trade Practices § 4.7, p. 248. See Muniz v. Kravis, 59 Conn.App. 704, 712-13, 757 A.2d 1207 (2000). "[A] CUTPA violation may occur in connection with the lease of commercial property." Id., p. 249.
"In determining whether a practice violates CUTPA, [the court is] guided by the [following] criteria . . . (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 businessperson]." (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 378 n. 11, 949 A.2d 1084 (2008). "[W]hether a practice is unfair and thus violates CUTPA is an issue of fact." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 22, 938 A.2d 576 (2008).
General Statute § 22a-6u(i) provides in relevant part: "In the event the commissioner [of the department of environmental protection] orders the testing of any private drinking well, and such testing indicates that the water exceeds a maximum contaminant level . . . [n]ot later than twenty-four hours after receiving such notification, [the] owner [of the well] shall forward a copy of [the results of such testing] to at least one tenant of each unit of any leased or rented dwelling unit located on such property and each lessee of such property."
On March 7, 2005, R. Radei was notified by the department that the water on the premises exceeded the allowable contaminant level. Thus R. Radei had the duty to notify her tenant by March 8, 2007. The present plaintiffs did not assume their tenancy of the premises until January 1, 2006. Therefore, on March 7, 2005, K. Radei had no duty to notify them of the results of the water test. The plaintiffs' CUTPA claim based on Gen. Stat. § 22a-6u(i), therefore fails.
The court, having already found that the plaintiffs have failed to prove the allegations set forth in counts one — eight of the complaint, also finds that they have additionally failed to prove their CUTPA claims based on those counts. Finally even if it could be said that the plaintiffs had proved the ninth count, i.e., that R. Radei created a nuisance on the premises, as stated previously, the plaintiffs have wholly failed to prove that R. Radei was the cause of any substantial injury or damages. Had the plaintiffs not walked away from their tenancy on or about February 15, 2007, a water system would have been installed which would have made the quality of the water acceptable to NDDH and the plaintiffs could have opened for business. It is the plaintiffs' own actions, therefore, and not any actions of the defendant, which are the cause of any injury and losses sustained by them. Therefore, even if it could be said that the plaintiffs proved that the defendant created a nuisance, they have failed to prove that the defendant caused substantial injury. Accordingly, the court declines to award punitive damages or attorneys fees. See Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987) (awarding punitive damages and attorneys fees under CUTPA is discretionary).
CONCLUSION
For the foregoing reasons, judgment enters in favor of the defendant.