Opinion
UWYCV145016530
09-08-2016
Kathleen Roehrich v. Renee Licari et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The court conducted a hearing on this matter on October 23, 2015 and January 15, 2016. The plaintiff, a self-represented party, submitted subpoenas for the court to sign and for service upon two individuals. One of the subpoenaed witnesses was Attorney William Grady who the day before the hearing had filed with the court a letter indicating he would not be attending and thus not honoring the subpoena. The court conducted the hearing but permitted both parties to submit written question to Attorney Grady to be answered under oath and filed with the court. The court heard testimony from Kathleen Roehrich and Renee Licari as well as Amy Pelletier the real estate agent for the plaintiff.
The subpoena was signed after being ordered by the court on December 10, 2015. It was served on counsel for the January 15, 2016 court date. Counsel did not file any motions addressed to the subpoena such as a motion for protective order to allow the court and parties to have notice of his inability to attend and provide testimony and exhibits. Therefore, the court took the unusual position of allowing the parties to provide questions to be answered by Attorney Grady under oath and returned to the court with a copy of his entire file. (See order dated January 15, 2016.)
The original complaint was filed in Small Claims and transferred to this court. The action stems from a proposed real estate purchase of a residence located at 33 Old Field Hill Road, Unit 37, Southbury, Connecticut by the plaintiff Kathleen Roehrich from Renee Licari. The plaintiff named two defendants, Renee Licari and the Real Estate Agency which is named in the Second Count. The claim has been withdrawn as to Joseph Bette Realtors, Inc. The operative pleading is the Revised Complaint dated April 14, 2014. The First Count of the complaint alleges that Kathleen Roehrich negotiated the purchase of the property at 33 Old Field Hill Road, #37 in Southbury, Connecticut with an offer for purchase only with an assurance and commitment by the defendant for a timely closing. The defendant, Renee Licari, was the real estate salesperson as well as the owner/seller of the property. The plaintiff alleges that there was an inquiry about the timing of the closing, in particular, that no circumstances existed which would impede the ability to close on the property on or before May 30, 2013. The plaintiff alleges that she was assured by the defendant that there were no reasons to prevent the closing in accordance with the agreement in the real estate contract. After entering into an agreement for sale, the plaintiff proceeded to complete inspections and a review of the land records by Connecticut Attorney Title Insurance Company. The title search exposed several impediments to closing that were recorded on the land records including a Federal Tax Lien in the amount of $118,301.04, an open-end mortgage of $300,000 with Wells Fargo Bank which shortly thereafter foreclosed on the property, a Lis Pendens and a property foreclosure for condominium fees, a judgment lien in favor of Richard T. Hazard and Donna Hazard in the amount of $25,000, and a UCC Financing Statement for Standard Security Systems with a court judgment on or about July 21, 2004. The defendant did not close on May 30, 2013 because of the title issues and the defendant through counsel exercised the 30-day period in the agreement to establish the closing date as June 30, 2013. However, as of June 30, 2013, the defendant was unable to sell because in addition to the other exceptions to marketable title, Wells Fargo Bank filed for a short sale and thus with the delay and the plaintiff's limited time frame she declared the defendant in default of the contract.
In the First Count of the complaint the plaintiff alleges that the defendant Licari " continued to willfully neglect and decline to disclose any and all known circumstances . . . respective to the homeowner/sellers' ability and readiness to close title . . ." She further alleges that the actions of Renee Licari directly caused " financial injuries due to resulting homelessness, and injuries due to forfeiture of Corporate Relocation Benefits solely and specifically as a consequence of failure to close title on her purchase of Defendant Licari's property." The plaintiff contends that she is entitled to damages as a result of the egregious actions of Renee Licari as the seller and real estate salesperson.
The Defendant has filed an answer and a special defense alleging Recission. The plaintiff filed a reply to the special defense.
DISCUSSION
" It is well established that in cases tried before courts, trial judges are the sole arbiter of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The fact finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct. Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what-all, none, or some of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
In evaluating the credibility of the witnesses, this Court considered their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, their manner in responding to questions and whether they were candid and forthright or evasive and incomplete, their interest or lack of interest in the case and the consistency or inconsistency of their testimony in relation to other evidence, including exhibits in the case. The testimony and exhibits in this matter have created areas for the court to weigh and decide issues of credibility or reliability as they relate to the exhibits or testimony. This was recognized by the parties during the trial and as argument in their post-trial memorandum.
From the credible testimony and evidence presented, the court finds the following facts to have been proven by a fair preponderance of the evidence.
The plaintiff introduced testimony in the court as well as an agreed-upon affidavit of her counsel, Attorney Grady in support of her claims.
The real estate contract which is the impetus of this action between the plaintiff and the defendant contained an agreed-upon sale price as well as deposit amounts which were divided as an original deposit of $3,280.00 and $5,000.00 after the inspection of the property. The original Contract also included other significant paragraphs concerning the closing, title and default. It was the alleged deliberate conduct on the part of the defendant and thus the alleged fraudulent representations as to the ability to perform her part of the agreement for which the plaintiff seeks an award of damages. The contract provides as to the closing date that: " Closing and transfer of title shall take place on May 31, 2013 or such other time as the parties may agree . . ." The contract also includes a provision as to Title, Affidavits and Releases which states in pertinent part: " The property is to be conveyed by a good and sufficient Warranty Deed of the seller . . . conveying a good marketable title to the Property, free from all encumbrances, except as may be acceptable to Buyer and Buyer's Lender, if any, and except zoning and other municipal regulations, the Inland Wetlands law and any other state of facts that an accurate survey of the Property may reveal. Buyer shall at Buyer's own expense promptly conduct a title examination of the Property. Buyer shall notify Seller of any defects in title that render title to the Property unmarketable, as defined by the Standards of Title of the Connecticut Bar Association, disclosed by such examination. If Seller is unable to remove such title defects within thirty (30) days of notification of the defect of Title, or Closing of Title, whichever date is later, Buyer shall have the option to (a) accept such title as Seller is able to convey without abatement or reduction of the Purchase Price, provided however, Seller shall pay any additional premium or post whatever bond and execute such affidavits and indemnity agreements as may be required by Buyer's title insurer to write title insurance over the defect or, (b) cancel this Contract and receive a return of all Deposits. Seller shall in addition pay to Buyer any expenses actually incurred by Buyer for attorney fees, non-refundable fees of lending institutions, survey costs and inspection fees, " and " b. Seller agrees to furnish such affidavits concerning title, encroachments, mechanic liens and other items and in such form as Buyer's title insurance company may require in order to obtain tile insurance coverage on the Property or to waive exceptions to the title policy that are objectionable to Buyer's tender." Lastly, the contract provides as to " Default" that " [I]n the event that Seller shall fail to perform any of the obligations and duties as provided in this Contract and Buyer is not in default, then Buyer may seek whatever remedy may be available under equity or law to recover the property or damages resulting from Seller's default. Should legal action be taken by either party to enforce any provision of this Contract it is agreed by the parties hereto that the non-prevailing party shall pay all costs (including without limitation attorneys fees and court costs) incurred by the prevailing party and any real estate broker made a party to such action, who has not significantly contributed to the default." (Attachment-Real Estate Contract, ¶ 11, Grady affidavit.) Thereafter, the parties executed an Addendum to Real Estate Contract on May 1, 2013 that stated: " The closing date to be changed to May 30, 2013."
This was one day earlier than the original contract.
As a part of the documents for the sale, the Seller provided answers to the Residential Property Condition Disclosure Report. Question 2 within this report asks, " Does anyone other than yourself have any right to use any part of your property, or does anyone else claim to own any part of your property?" The response by Renee Licari was " NO."
The attorney for the plaintiff provided written response to the court concerning the purchase of the property in which he clearly stated that the defendant was unable to clear title and a title insurance company would not have included the encumbrances which was unacceptable to the lending institutions.
Response: A title policy could have been issued by a title insurance company but the exceptions from coverage would have included the unreleased encumbrances(s) which would have been unacceptable to the Plaintiff's lending institution. 3. Did Defendant Licari or her real estate attorney ever communicate a change in status of one or more liens? Response: No. 4. Did Defendant ever present clean and marketable title? Response: No. 5. What was the basis of the termination of the real estate contract? Response: Defendant's inability to convey " a good marketable title to the property, free from all encumbrances . . . pursuant to Section 9 of the real estate Sale and Purchase Agreement dated April 14, 2013 . . . 7. In your opinion was the Plaintiff within her rights to terminate the contract at the time she did so? Response: Yes . . . 10. Does the contract have a provision for damages? If so, what? Response: Yes. Reference is made to paragraphs 9 and 11 of the April 14, 2013 real estate Purchase and Sale Agreement." The plaintiff testified to a myriad of items as damages in this action as a result of the failure of the defendant to secure marketable title within the time plaintiff agreed to close on the property. Counsel for the plaintiff submitted as a part of his affidavit attorney fees in the amount of $3,162.50. Counsel also included the cost of the title search for the property in the amount of $100.00. The January 26, 2016 responses under a sworn affidavit by the plaintiff's closing counsel were as follows. 1. For what reason was the proposed purchase not able to be fulfilled? Response: The defendant was unable to clear title of all encumbrances as set forth in title examination of May 9, 2013, in particular encumbrances numbers 3, and 6 on page 2 of 4 thereof a copy of which title examination is included in the certified file submitted along with this affidavit 2. For what reason was the title insurance policy not able to be provided by a valid insurance company?
On May 29, 2013 counsel for the plaintiff notified the defendant's attorney that there was " a continuing problem with clearing the title on the above premises" and that the plaintiff " would take possession of the premises in advance of the closing" with two conditions including an escrow of funds and giving 30 days to clear title. If unable the Buyer would vacate the premises and seek restitution. Of even more significance in this correspondence is the representation that " our client has no place to reside and this issue has severely impacted the transaction upon which she relied. Our client will expect a return of deposit and her expenses should this matter not be resolved."
On May 30, 2013 which was the agreed-upon closing date, counsel for the defendant advised Attorney Grady that the title was to be clear within the week and that in accordance with the contract the defendant had until June 30, 2013 to close. Thereafter there was no correspondence scheduling the closing date.
On June 21, 2013 Attorney Grady requested a resolution of the title issues and received a response on June 24, 2013 from Attorney Uskevich that a short sale was necessary with Wells Fargo. Attorney Usekevich inquired as to whether Ms. Roehrich would wait for the short sale to be completed and then purchase the property.
Attorney Grady notified counsel for the defendant that they were exercising their rights under paragraphs 9 and 11 of the agreement.
In particular, the issues that surrounded the property from the beginning consisted the information provided by the Connecticut Attorney Title Insurance Company's report which included not only standard exceptions to the title but six special exceptions to the title. These special exceptions were substantial and the plaintiff could not obtain a clear title or obtain financing that did not consider the serious nature of the exceptions. No one seems to disagree that the defendant could not provide a good and marketable title within the time limits established by the parties and already extended beyond the time to accommodate the plaintiff's position. The claim in the First Count is that the defendant made fraudulent misrepresentations to the plaintiff from the inception of the contract. The plaintiff contends that the defendant was well aware of the longstanding title problems and knew that she was unable to give good marketable title within the time of 30 or 60 days. A simple review of the financial burden on the property is a clear indication that even at a contract price of $328,000, the liens and the mortgage amounted to $418,301.04. Therefore, the breach of the real estate agreement is not at basis of the legal action but the plaintiff seeks monetary damage as a result of the fraud on the part of the defendant Renee Licari.
The defendant has filed as a special defense the claim that the plaintiff signed a Recission of the real estate contract which she argues precludes any damages because the language of the Recission acts as a bar. First of all, the agreement is for escrow held by Joseph Bette Realtors, Inc. and not money held by the individual defendant. The language addresses only future obligations. It effectively ended the agreement for the purchase of the property. No one contends that there is an issue as to agreement for the purchase. The Recission Agreement does not preclude the claim by the plaintiff for the misrepresentation and fraud by the defendant.
Nondisclosure can be considered a fraud. Pacelli Brothers Transportation, Inc. v. Pacelli, 189 Conn. 401, 456 A.2d 325 (1983). " Fraud indeed, as known to equity jurisprudence, 'properly includes all acts, omissions and concealments by which an undue and unconscientious advantage is taken of another." Id., (Citations omitted.) " The intentional withholding of information for the purpose of inducing action has been regarded as equivalent of fraudulent misrepresentation." ID., 407. (Citations omitted). " To constitute fraud by nondisclosure or suppression there must be a failure to disclose known facts . . . request or an occasion of circumstances which imposes a duty to speak . . ." (Citations omitted.) Wedig v. Brinster, 1 Conn.App. 123, 130, 469 A.2d 783 (1983). Fraud requires that the plaintiff establish that: 1) a false representation was made as a statement of fact; 2) the statement was untrue and known to be so by the maker; 3) the statement was made with the intent of inducing reliance thereon; and 4) the other party relied on the statement to his detriment. Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 296, 823 A.2d 1184 (2003).
Although the law does not recognize a time is of the essence claim unless the parties have expressed such in this action the parties changed the date but also had discussions about the relocation and the need to close in a timely manner. Tulisano v. Schonberger, 74 Conn.App. 101, 810 A.2d 806 (2002). In the instant scenario, the defendant not only agreed to the time constraints by the plaintiff as is noted in the original contract but entered into an amendment to allow closing a day earlier. Thereafter, the defendant indicated the closing could take place by June 30, 2013. These representations to the plaintiff could never be satisfied with the outstanding foreclosures, judgment and tax lien upon the property. It was not until almost another month that the plaintiff was told the truth that Wells Fargo Bank (who had a $300,000 mortgage) required a short sale of the property. The defendant did not address the federal tax lien or the other judgments which added together were substantial.
The defendant denied that she represented that either the closing could be completed by the time set forth in the agreement or that she did not misrepresent that there were liens and a possible foreclosure impacting the property. This position is contradicted not only by the dates of the six exceptions noted on the title report which clearly show that the defendant had notice of the various legal claims but it is also supported by her inaccurate response to the Condition Disclosure Report in which she responded that no other person had a claim or interest in the property. This was obviously false based upon the judgment and in particular the foreclosure action by Wells Fargo Bank. Because the defendant was not only the salesperson who was receiving an additional $1,000 for the sale but the owner of this debt-ridden property, it is more probable than not that the defendant was withholding the information in order to sell this property that had been on the market for a period of time. The plaintiff obviously relied upon the representations that the property would be able to obtain a mortgage without substantial fees or penalties assessed to her and that she could take possession within the time frame that would permit her to move and receive moving assistance from her employer. None of this was possible because of the defendant's inability to provide clean, marketable title.
Having satisfied a factual basis for a claim of fraud against the defendant because of the failure to disclose the obvious impediments to closing within the time frame clearly enunciated by the plaintiff, the plaintiff is entitled to judgment in her favor. The defendant is responsible for the attorney fees and costs as noted in the contract which includes $3,162.50 for the attorney fees and $100 for the title search. As to the location fees the plaintiff has failed to provide sufficient documentation as to the amount or the causation in relation to this cause of action. The plaintiff did provide documentation of additional fees for storage and U-Haul services in the amount of $363.57. In accordance with her testimony they were additional costs as a result of the inability to close on the property in the time anticipated.
III. CONCLUSION
The plaintiff has demonstrated that the defendant is a real estate agent experienced in sale of residential dwellings. The defendant signed the real estate contract for the sale of the property at 33 Old Field Hill Road, #37, Southbury Connecticut as both the listing agent and the owner of the unit. The exceptions which were noted in the CATIC summary for title insurance included judgment and federal tax liens as well as an outstanding mortgage which was subject to foreclose and the Lis Pendens and UCC Financing Statement were known to Renee Licari well before entering into the real estate contract in 2013. The federal tax liens involved a period of time beginning in 2000 and was filed in 2008. Similarly, the liens and UCC statement were filed against the plaintiff with a notation in the land records well before the defendant agreed to the sale of residence. Based upon the evidence and testimony the court finds for the plaintiff, Kathleen Roehrich and awards Attorneys Fees in the amount of $3,162.50, costs for title search of $100 as well as additional storage and U-Haul fees of $363.57. There is no credible evidence which supports the plaintiff's claims of emotional distress. Lastly the plaintiff's claims as to relocation and lost or damages property are not supported by the evidence as related to this action and thus the court does not award damages for these claims.
Judgment shall enter for the plaintiff in the amount of $3,626.03.