Opinion
No. CV98-063630S
June 19, 2003
MEMORANDUM OF DECISION
"By the sea, by the beautiful sea" go the lyrics to a popular song from the past. Shimelman claims that Katz partially obstructed his view of that beautiful sea by building her house in a location contrary to the agreement of the parties and with a deliberate and malicious intent to injure him. Katz claims that she never represented to Shimelman where she was going to build her new house nor did she do anything to deliberately and maliciously interfere with his use of his property.
This dispute between affluent neighbors, owners of two attractive homes facing Long Island Sound, commenced with a complaint in two counts filed by Shimelman (hereinafter referred to as S) claiming money damages and an injunction against the erection of property improvements pursuant to Connecticut General Statutes § 52-480. The defendant Katz (hereinafter referred to as K) filed an answer denying most of the allegations in the complaint, five special defenses (compliance, estoppel, waiver, laches, and the Statute of Frauds), and two counterclaims, one for trespass and the other for the destruction of a fruit tree (both counterclaims were abandoned).
The parties were well represented by seasoned counsel, in a trial which proceeded over four days, included 44 exhibits and the testimony of nine witnesses. At the request of the parties, the court viewed the premises together with counsel. Subsequent to the conclusion of the trial, the parties each filed post-trial briefs and reply memoranda which thoroughly and competently discussed the legal and factual claims.
The properties in question are located on a private, gated road which is lined with small beach cottages, many of which have been upgraded to more luxurious accommodations. The southern exposure has a magnificent view of Long Island Sound and the northern exposure a beautiful view of the Housatonic River and adjacent marshland. At first, K lived in number 8 Smith Point Road for a number of years. She then bought the adjoining property, 10 Smith Point Road, with the idea of tearing down the house on CT Page 8185-x #10, building a larger new home thereon, and then selling #8.
S had long been interested in buying waterfront property and examined numerous locations before settling on #8 which was listed at the time for $575,000.00. After tour visits to the property and some negotiations, an agreement was signed indicating a purchase price of $500,000.00. During the negotiations, S requested three additions to the contract, a lead paint disclosure, the right to remove shrubs on one side of the property, and the right to build a garage, which were all included in a document entitled Addenda to Purchase Agreement.
The problem which led to this lawsuit concerned an alleged discussion which S had with K in late August of 1997 prior to the contract being signed. Present were S and K and their respective real estate agents, Betsy Grauer and Jim Kelly. S claimed that it was during the meeting that K promised that the new house she planned to construct on #10 would be in line with the other houses on the street and would not interfere with the views of #8. Agent Grauer supported this testimony. K denies ever making the statement to S. Unfortunately, the experienced real estate agent Grauer who drafted the agreement, as is the custom in New Haven County, did not include any mention of the alleged promise of no alteration in views in the final version or in the addenda.
Real estate agent Kelly had no recollection of such a promise coming from K but did specifically recall a discussion with S and agent Grauer, on the same day, in the backyard of the subject property, in which S queried as to why K was selling #8. Kelly's response was, "They, the only reason they were selling is that they wanted to build a bigger house next door . . . If he had concerns, which he might have asked, that, put it in writing, add it to the contract, and further go to the town hall, city hall and ask planning and zoning if there are any restrictions on a particular size of house." (11/22/02 Tr. Pg. 9.) S did not check it out further and nothing was ever added to the contract concerning the construction of the house on #10 or any alteration of the views of #8.
S testified that K's representation or agreement about not building closer to the sound was an absolute deal maker and crucial to his decision to buy. Without the promise, S said he would not have purchased the property or would have asked for a different price. S also testified about his extensive experience in buying and selling real estate as did agent Grauer. In fact, S and Grauer sometimes purchased investment property together. Why these two sophisticated, intelligent, experienced individuals would not include a crucial condition in the contract is a mystery, especially in light of subparagraph B of the contract which clearly states "neither the SELLER nor any representative of the SELLER CT Page 8185-y has made any representation or promise, other than those expressly stated herein." The rationalization that neither S nor Grauer put this crucial language in the contract because they relied upon the oral representations of K is unavailing. Further, K had not even hired an architect at that point and did not know where the house would be located on #10 or any details concerning same.
The court looks with disfavor upon that portion of the Defendant's CT Page 8185-aa brief wherein he referred to Plaintiff's divorce, representation by three different counsel, and the inference he wished the court to make from such information. The court recalls no such testimony nor would it have been relevant to the issues at hand. It was inappropriate for counsel to have included in his brief information outside of the record.
There was considerable testimony about the degree of obstruction. Assuming 180 degrees is a full view of Long Island Sound, there was testimony by S's expert that the view was obstructed so that there was now only a 135 degree view of the sound (a 25% reduction in view). K's expert acknowledged a 10% obstruction of view. What is not known, is what, if any, obstruction of views existed when the old house at #10 was standing. That house was closer to the property line by several feet than is the new house. It is conceivable that there was some obstruction even with the old house.
It is also interesting to note that both appraisers retained by the experts indicated that S's property at #8 had increased in value despite the obstructed view. S's expert said it was now worth $1,000,000.00. K's expert said it was now worth $600,000.00. S's claim is that it would be worth more but for the obstruction. Damages will not be discussed further in this memorandum because the court does not believe that S sustained his burden of proof regarding the first count rendering such a discussion moot. The second count seeking an injunction was abandoned by the plaintiff as an inappropriate remedy.
S contends that having an unobstructed view of Long Island Sound was a crucial component of his decision to purchase K's home. K argues that an essential element to the purchase and sale of real estate must be in writing to comply with the statute of frauds. S argues that the statute of frauds is not applicable because the real issue is not the transfer of the property, it is K's purported statement regarding the construction of her new home. S contends that this statement was made to induce him to purchase 8 Smith Point Road. "[Our 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.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 273, 721 A.2d 1197 (1998). S argues that K told him that she would not obstruct his view when building her new home. He further contends that K made this statement recklessly, knowing that he would rely on it and that she had no intention to keep her promise. As such, S argues that he is entitled to damages. CT Page 8185-z
"Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact." (Internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 273, 721 A.2d 1197 (1998). After a thorough review of the evidence presented at trial, the court is not persuaded that K made any statement regarding the placement of her new home. Furthermore, even if K made statements to S about his view, they were not misrepresentations because the evidence presented does not show that K acted with the intent to induce S to purchase the land or that K had knowledge that an unimpeded view was material to the agreement.
The evidence does suggest, however, that S considered an unimpeded view of Long Island Sound to be a essential element of his decision to purchase 8 Smith Point Road. As such, that requirement should have been in writing to satisfy the statute of frauds. "The primary purpose of the statute of frauds is to provide reliable evidence of the existence and the terms of the contract . . ." (Internal quotation marks omitted.) Killion v. Davis, 69 Conn. App. 366, 372, 793 A.2d 1237, cert. denied, 260 Conn. 931, 799 A.2d 295 (2002). The "statute of frauds, General Statutes § 52-550, requires that every agreement or memorandum of an agreement for the sale of real property or any interest in or concerning real property be in writing . . ." (Internal quotation marks omitted.) LR Realty v. Connecticut National Bank, 53 Conn. App. 524, 541, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).
General Statutes § 52-550 (a) (4) states in relevant part: "No civil action may be maintained . . . unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: upon any agreement for the sale of real property or any interest in or concerning real property . . ."
"[C]ontracts for the sale of real estate must contain with certainty, without regard to parol proof, at least the essentials which describe the subject of the sale, its terms, and the parties to the contracts, thereby furnishing evidence of a complete agreement." (Internal quotation marks omitted.) State v. Hahn, 207 Conn. 555, 562, 541 A.2d 499 (1988). The evidence suggests that the purchase and sale agreement for 8 Smith Point Road contained all of these requirements. S and his real estate agent had extensive practice in the buying and selling of real estate. Their knowledge that modifications to a contract involving the sale of real estate must be in writing is evidenced by the three amendments on other items that were included in the contract. S testified that an unobstructed view of Long Island Sound was essential in his decision to purchase K's home. He further testified that he would not have purchased the property if he knew that his view would be altered. As such, this modification of the agreement needed to be in writing to satisfy the statute of frauds. The court finds for the defendant.
CUTSUMPAS, J.