Opinion
No. MMX 08 5005292 S
November 19, 2010
MEMORANDUM OF DECISION
I FACTS
The plaintiff, Heather Stone, seeks money damages against the defendant, Mary Walsh, arising out of the sale and purchase of residential real estate located at 37 Laurel Avenue, Essex, Connecticut (the property). The plaintiff alleges damages resulting from water infiltration and mold. The plaintiff's operative complaint, filed January 23, 2009, alleges fraud, negligent misrepresentation, innocent misrepresentation, and breach of contract.
A count alleging a breach of the covenant of good faith and fair dealing was precluded by way of summary judgment granted by order of the court on August 13, 2009.
In her answer, defendant admits the following facts: the parties and their respective real estate agents negotiated for the purchase and sale of the property; that on July 20, 2007, the parties entered into a contract for the purchase of the property; that the plaintiff and the defendant signed a residential property condition disclosure report (disclosure report) on July 20, 2007 and March 13, 2007, respectively; that water infiltrated the basement of the property during a storm in March 2007; and that the plaintiff purchased the property for $385,000.
In addition, the defendant asserts the special defenses of accord and satisfaction, waiver and comparative negligence. In response, the plaintiff admits the following facts: that the defendant entered into a contract with the plaintiff for the sale of the property; that the purchase and sales agreement (the agreement) speaks for itself; that an inspector was allowed access to the property on behalf of the plaintiff between the time of the signing and closing of the sale for the purpose of conducting a visual noninvasive inspection of the property; that said inspector observed evidence of water infiltration and advised the plaintiff to inquire with the defendant about water problems, as the extent of the water penetration may not be fully observable; and that the plaintiff was advised by the inspector to inquire with the defendant as to possible water issues, as the inspector observed evidence of past water infiltration prior to the closing date of the agreement.
The court heard this matter on April 15, 2010, April 30, 2010, and May 4, 2010, during which the court heard testimony from the plaintiff and defendant and their respective witnesses. The court received into evidence a total of fifty-four exhibits. The court also received pretrial and post-trial briefs from the parties, the last being received by the court on June 16, 2010. Thereafter, the court granted the plaintiff's motion to open and heard additional testimony, and received additional exhibits on August 2, 2010.
The parties stipulated to the following facts. The plaintiff currently resides at the property and the defendant currently resides at 10 Woodland Drive, East Lyme, Connecticut. On or about July 2007, the plaintiff and the defendant, through their respective real estate agents, negotiated for the purchase and sale of the property. The plaintiff and the defendant executed the agreement on or about July 20, 2007, and July 23, 2007, respectively. Additionally, the plaintiff and the defendant signed the disclosure report on July 20, 2007, and March 13, 2007, respectively. Finally, on September 12, 2007, the plaintiff purchased the property for $385,000.
The court, after reading all of the pleadings, reviewing all of the exhibits, considering the testimony of the parties and their witnesses and assessing the credibility of each, and considering the pretrial and post-trial briefs filed by each party, as well as the arguments of counsel, makes the following findings.
The defendant purchased the property in 2001. At the time of said purchase, the property contained a single-family home that was approximately fifty years old. The defendant had not resided at the property since August 2005, and instead rented it to various tenants until the time the plaintiff purchased it. Prior to selling the property to the plaintiff, the defendant last rented it to Judy McCann, who found water in the basement on March 2, 2007, during a torrential rain storm. Water appeared to have leaked through a conduit servicing the electrical box and leaked onto the basement floor and carpeting, but the level of the water did not rise above the carpet. Upon receiving a call from Ms. McCann advising her of the water leakage, the defendant came to the property with a wet/dry vacuum to remove as much water as possible. She also recommended that Ms. McCann use dehumidifiers to remove the remaining water. On March 4, 2010, the defendant hired Youmans Carpet Cleaning (the carpet cleaner), who extracted additional water from the carpet on March 8, 2010. The carpet cleaner rinsed, sanitized, and applied a micro-bacterial treatment to the carpet, removed approximately sixty gallons of water from the lower level, installed turbo air removers and a commercial dehumidifier and used moisture meters to determine that the carpet and adjacent walls were dry before departing the property. The carpet cleaner did not feel any further treatment was necessary. The carpet cleaner submitted the following bill for the work performed:
3/08 Extract standing water from carpet and pad. Steam extraction clean, rinse and sanitize carpet. Applying an anti-microbial treatment to inhibit mold growth.
3/09 Deliver and set up 2 turbo air movers (fans) and one commercial dehumidifier.
3/10 Inspect drying progress and move drying equipment to maximize results. Remove one air mover from site.
3/11 Had equipment moved into the tiled floor room to dry moisture from wall.
3/12 Inspect carpet and pad for moisture. Determined that both [were] dry. Removed all equipment from site.
The carpet cleaner further testified that at the time he completed his work, the carpet and padding were completely dry. He also testified that he observed no signs of mold or stains.
At the time the defendant placed the property on the market on March 13, 2007, she executed the disclosure report pursuant the Uniform Property Disclosure Act. Paragraph fifteen of the disclosure report contains the following question: "Basement water/seepage/dampness? Explain amount, frequency and location." The defendant provided her answer on the disclosure report as follows: "One time only March 2007 major storm water in basement." On a form entitled "mold and mold-forming condition disclosure" dated March 13, 2007, the defendant represented that she "has no knowledge of the presence of the conditions that could lead to the growth of mold (excessive humidity, water leakage, drainage problems, flooding, etc.)."
On July 23, 2007, the plaintiff executed the agreement with the defendant wherein the plaintiff agreed to purchase the property. Paragraph ten of the agreement incorporated paragraphs A-Q on the reverse side of the document. Subparagraph B of paragraph 10 provides:
B. Condition of Premises: BUYER(S) represent that BUYER(S) have examined the real property and are satisfied with the physical condition thereof, subject to the provisions of #7, and neither SELLER(S) nor any representative of the SELLER(S) have made any representation or promise, other than those expressly stated herein or contained in the attached written residential condition report, if applicable, upon which the BUYER(S) have relied in making this Agreement . . .
The agreement provided that the plaintiff, as buyer, was to undertake any inspections of the property. Prior to the purchase, the plaintiff arranged to have the house inspected, including structural and mechanical inspection of the property, a septic inspection, wood destroying insect inspection, water testing, lead paint testing, asbestos testing and radon gas testing. The plaintiff hired a company called Tiger Group, Inc. (Tiger) to perform the inspections. In a written report prepared by Tiger dated July 27, 2007, it was noted that there was evidence of moisture and water staining in the basement and other portions of the interior. Specifically, paragraph sixteen stated: "Evidence of prior water penetration. Consult with owner or monitor for source and repair." The report also contained a handwritten note adjacent to paragraph sixteen that stated: "stains at wall and floor under carpet — consult with owner — see notes A, F G." Note A provided: "Efflorescence is the white powdery substance on concrete walls and floors. It is usually an indication that dampness or water penetration has occurred at some time." Note F provided: "Maintain low moisture by dehumidifying, venting and heating in appropriate seasons to minimize deteriorations by rot, mold, corrosion or insect infestations." Finally, note G provided: "The evidence, source, amount or frequency of water penetration may not always be observable or evident at the time of this inspection. We suggest you consult the owner for a historical perspective of whether evidence of water penetration has been noted or not." Mr. Dietze of Tiger testified that he saw no evidence of mold as he would have indicated it on his report. He further testified that he only observed water stains during his inspections.
As a result of the findings made by Tiger, on August 9, 2007, the parties executed an addendum to the agreement that outlined the credits given to the plaintiff for roof repairs, plumbing repairs, electrical work, a septic riser, a radon mitigation system, and that the defendant would hire a licensed contractor to remove certain asbestos prior to closing. The asbestos work was completed by the closing date of September 12, 2007. At the time of the closing, the plaintiff received the credits as listed in the addendum to the agreement and took title to the property. Prior to and on the date of the closing, the plaintiff inspected the property and raised no other complaints or issues concerning the physical condition of the premises. Notably, the plaintiff made no complaints regarding the presence of mold or mold conditions. As noted in the agreement with Tiger, the plaintiff was specifically warned about the possibility of mold and advised to consult with an environmental expert and obtain a home environment test for mold. The plaintiff failed to do so before purchasing the property.
During the approximately four-month period after the closing, during which time the plaintiff occupied the property, she saw no evidence of mold on the property. Sometime later, the plaintiff saw Ms. McCann, who informed the plaintiff of the water in the lower level stemming from the storm of March 2, 2007. Thereafter, approximately four months after the closing, the plaintiff hired contractors, ServPro, to test and inspect the property. Mold remediation reports produced from those inspections disclose elevated "black mold" levels in several areas of the house, including the basement. The recommendation stemming from those reports included extensive cleaning, material removal, and repairs.
The plaintiff, at the recommendation of the inspector from ServPro, hired Dr. Feldman, a certified industrial hygienist who inspected the property on several occasions. Dr. Feldman took air samples which revealed the presence of mold. She also used a special light which revealed the presence of mold approximately a centimeter in length in various locations in the property. Dr. Feldman testified that sixty gallons of water in the basement carpet for a week would allow ample opportunity for mold to grow and become airborne. She also testified that the presence of water did not necessarily mean that mold would grow. She further testified that at no time did the plaintiff report the presence of mold to her and that it was only revealed to the plaintiff after the testing. She also testified that the mold she observed during her inspection in January 2008 could have grown in a matter of days or within two weeks.
Pursuant to Dr. Feldman's recommendations, repairs were made to the property by ServPro. During those repairs, several water drainage and leakage problems were revealed, including water infiltration in the north wall of the house resulting from defective flashing under the doors leading out to the deck, which caused the wood to deteriorate, and a mold condition behind the sheet rock wall and under the deck, which came from an area well above the location of the leak that occurred on March 1, 2007. These problems were not related to the leak as alleged in the complaint.
II DISCUSSION
"It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Where testimony is conflicting the trier may choose to believe one version over the other . . . as the probative force of the evidence is for the trier to determine." (Internal quotation marks omitted.) Swerdloff v. Rubenstein, 81 Conn.App. 552, 557, 841 A.2d 222 (2004). Furthermore, "[i]t is an elementary rule that whenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact." (Internal quotation marks omitted.) Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 645, 866 A.2d 588 (2005). Thus, a plaintiff cannot prevail where she fails to prove the material allegations of her complaint. Willametz v. Guida-Seibert Dairy Co., 157 Conn. 295, 303, 254 A.2d 473 (1968).
A
The court first addresses the plaintiff's claim of fraudulent misrepresentation as alleged in the first count. "A cause of action for intentional misrepresentation is essentially a claim of fraud . . . Fraud consists [of] deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its 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 . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal . . . The determination of what acts constitute fraud is a question of fact . . ." (Citation omitted; internal quotation marks omitted.) Reid v. Landsberger, 123 Conn.App. 260, 281, 1 A.3d 1149 (2010).
Additionally, the claimant must prove that the defendant had knowledge of the defect. Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn.App. 180, 185, 579 A.2d 578 (1990); see also Co-Options, Inc. v. News America Marketing Instore, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 00 0163095 (February 27, 2002, Hodgson, J.) (claimant must prove that representation was false at time it was made); cf. Pourmaleki v. Eskierski, Superior Court, judicial district of New Britain, Docket No. HHB CV 07 5004715 (March 28, 2008, Pittman, J.) (no allegations in complaint that defendant knew or should have known of defects); Crouse v. Mierzejewski, Superior Court, judicial district of New Haven, Docket No. CV 05 4005879 (March 13, 2008, Bellis, J.) (vendor's statement that sewage system was in sound operational condition was not fraudulent representation made for purpose of inducing purchaser to buy property because vendor was unaware of any plumbing or sewage problems, had never been notified of any such problems and had no reason to know of such problems).
The plaintiff alleges that the defendant intentionally misrepresented the status of the property with regard to the presence of mold or the presence of conditions that could lead to the growth of mold, as well as other water incursion conditions. Specifically, the relevant allegations in the complaint allege that inspection of the property revealed evidence of water penetration in the basement, attic and storage room of the property and that the defendant advised the plaintiff's agent that there were no "water issues."
The representations made by the defendant regarding the property included those contained in the disclosure report, wherein she disclosed that her only knowledge of water seepage was of the single incident of water in the basement on March 2, 2007, and in the mold-forming condition disclosure report executed by the defendant on March 13, 2007, wherein she disclosed that she had no knowledge of the presence of conditions that could lead to the growth of mold, such as excessive humidity, water leakage, drainage problems or flooding. The defendant believed that the water infiltration resulting from that incident was remedied by the removal of the water and other measures taken by the carpet cleaner.
Further, in response to the plaintiff's real estate agent's telephone calls and emails concerning the conditions in the property raised in Tiger's report, the defendant's real estate agent conducted an investigation and determined that the water stain on the basement ceiling resulted from the improper hookup of the dishwasher and that the defendant was not aware of any other leaks. Further information was also given with regard to the curtain drain. No other representations were made by the defendant with regard to the property as related to the plaintiff's allegations in her complaint.
In addition, with respect to the water infiltration conditions, the defendant has pleaded the special defense of accord and satisfaction. "An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty . . . Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement . . . Indeed, a validly executed accord and satisfaction precludes a party from pursuing any action involving the original, underlying claim . . . The defendant bears the burden of proving accord and satisfaction when it is pleaded as a special defense." (Internal quotation marks omitted.) Association Resources, Inc. v. Wall, 298 Conn. 145, 187, 2 A.3d 873 (2010). Here, as noted previously, the parties executed an addendum to the agreement, whereby the plaintiff received credits for repairs based on the findings in the Tiger report, including repairs caused by the water infiltration. The defendant, therefore, has met her burden of proving accord and satisfaction with regard to the water infiltration on all counts.
The court notes that as to the plaintiff's allegation that mold or conditions leading to mold were present, there is no allegation in the plaintiff's operative complaint that the defendant had knowledge of the presence of mold or conditions which would lead to the presence of mold at any relevant time. The court further notes that the plaintiff herself did not notice said conditions until at least four months after she first moved into the property. In addition, the defendant testified as to her lack of knowledge of the mold, as did the prior tenant of the property, Janet McCann. The court finds that testimony credible.
The plaintiff presented no credible evidence as to the origin of the mold located on the property after the closing nor how long that mold was present. Thus, the defendant could not, and did not, knowingly make a false representation to the plaintiff regarding the mold or mold conditions. Therefore, the plaintiff has not met her burden of proof as she has not produced sufficient clear and convincing evidence to demonstrate that mold was present in the property during the period of time that the defendant owned it, let alone that she knew of said condition.
Accordingly, the court finds in favor of the defendant with regard to the first count.
B
The court next turns to the plaintiff's claim of negligent misrepresentation as alleged in the second count. "The governing principles [of negligent misrepresentation] are set forth in . . . § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information . . .
"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result . . . Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact . . ." (Citation omitted; internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 502-03, 977 A.2d 228, cert. granted on other ground, 293 Conn. 935, 981 A.2d 1080 (2009). Furthermore, "the plaintiff must allege and prove that the reliance on the misstatement was justified or reasonable. We have consistently held that reasonableness is a question of fact for the trier to determine based on all of the circumstances." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 579-80, 657 A.2d 212 (1995). In addition, the standard of proof for a negligent misrepresentation claim is that of a preponderance of the evidence. Rego v. Connecticut Insurance Placement Facility, 22 Conn.App. 428, 430, 577 A.2d 1105 (1990), rev'd on other grounds, 219 Conn. 339, 593 A.2d 491 (1991).
Moreover, "[t]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information." (Internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn.App. 556, 558, 799 A.2d 1093 (2002). Thus, "[l]iability for negligent misrepresentation may be placed on an individual when there has been a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn. App. 194, 206, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008). Consequently, "[a] vendor of residential property is liable to a purchaser for a negligent misrepresentation of the condition of the property to that purchaser if the purchaser would not otherwise have agreed to the terms of the sale." Giametti v. Inspections, Inc., 76 Conn.App. 352, 363, 824 A.2d 1 (2003).
Conversely, while it is true that the person to whom the misrepresentation was made is not required to conduct an independent investigation as to the truth of an ascertainable fact; Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 302, 478 A.2d 257 (1984), rev'd on other grounds by 294 Conn. 121, 981 A.2d 1068 (2009); a purchaser may not be justified, however, in relying on a vendor's representations if the purchaser has the property independently inspected by a professional. See, e.g., Gibson v. Capano, 241 Conn. 725, 734, 699 A.2d 68 (1997) (purchasers who had property inspected by exterminator and had actual knowledge of property's prior condition cannot argue they were induced into agreeing to contract by vendor's misrepresentation regarding termite infestation); Giametti v. Inspections, Inc., supra, 76 Conn.App. 365-66 (purchaser not justified in relying on vendor's statements in residential property condition disclosure report because purchaser, at vendor's urging, had property professionally inspected); Post v. Mejias, Superior Court, judicial district of New Haven, Docket No. CV 07 5011964 (December 21, 2009, Hadden, J.T.R.) (purchaser who personally inspected property and had property professionally inspected not justified in relying on vendor's representations in mold and mold-forming condition disclosure report); cf. Maturo v. Gerard, 196 Conn. 584, 589, 494 A.2d 1199 (1985) (plaintiffs justifiably relied on defendant's representation because plaintiffs were not on equal footing with defendant and did not have equal access to information).
The plaintiff claims that the defendant's denial of knowledge of the presence of mold or conditions that could lead to the growth of mold as well as the denial of any knowledge any water drainage problems constituted negligent misrepresentation. She alleges that the representations made by the defendant and her real estate agent as to the absence of a mold problem were negligently made, and induced her to purchase the property in its damaged condition. The defendant claims that the plaintiff has produced no evidence of reliance on her representation. Furthermore, the defendant argues that the plaintiff's losses were the result of her own negligence.
Here, as previously noted, the plaintiff has not met her burden of proving that the defendant was aware of the presence of mold prior to the date of the sale. Specifically, neither the plaintiff, the defendant nor Tiger saw evidence of mold prior to the sale, the plaintiff saw no evidence of mold during the first four months she resided in the property and Dr. Feldman testified that the mold she discovered could have grown in a matter of days or a few weeks, long after the sale. Further, the plaintiff has not proven that she made reasonable reliance upon a representation made by the defendant. The court notes that the disclosure report states that it "is not a substitute for inspections, tests, and other method of determining the physical condition of the property." It also urges the plaintiff "to carefully inspect the property, and, if desired, to have the property inspected by an expert. The [b]uyer understands there are areas of the property for which the [s]eller has no knowledge and this disclosure statement does not encompass those areas." Additionally, paragraph 10(B) of the contract specifically provides that the plaintiff was not relying on the defendant or any of her representatives for "any representation or promise, other than as expressly stated herein or contained in the attached written residential condition report." Indeed, the plaintiff, by undertaking independent inspections of the property, demonstrated that she was not relying on any representations made by the defendant. When informed via these inspections that there was a water infiltration, as was disclosed by the plaintiff, and that there were additional water infiltrations in the attic, ceilings and under the sink, she was advised of the possibility that mold could be growing in areas that could not be inspected. Despite this advice, she decided, nevertheless, to proceed with the purchase of the property. Thus, the court finds that she did not rely on the representations made by the defendant.
The court notes that, while such a disclaimer is a valid contract term; Gibson v. Capano, supra, 241 Conn. 731; and is sufficient to defeat a claim of innocent misrepresentation; Solieri v. Polletta, Superior Court, judicial district of Waterbury, Docket No. CV 95 0128524 (March 8, 2002, Pittman, J.); it is not, standing alone, sufficient to defeat a claim of fraudulent or negligent misrepresentation. Martinez v. Zovich, 87 Conn.App. 766, 778, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005). In the present case, however, the defendant does not rely solely on this disclaimer to support her argument that the plaintiff was not justified in relying on her representations, and points to other evidence, such as the disclosure report and the Tiger report, to support her argument that the plaintiff's reliance on her representations was unreasonable. Thus, as the court must determine based on all of the circumstances whether the plaintiff reasonably relied on the defendant's representations, the disclaimer must be read in conjunction with all of the evidence.
Moreover, the execution of the contract, coupled with the inspections conducted by the plaintiff and Tiger, waived any reliance on any representations of the homeowner. See Hekeler v. Kauffman, Superior Court, judicial district of New Haven, Docket No. CV 02 0470710 (January 22, 2007, Hadden, J.T.R.). The plaintiff relied on her own judgment, after review of the Tiger reports, to proceed with purchase of the property. Accordingly, the court finds in favor of the defendant with regard to the allegation of negligent misrepresentation.
Accordingly, the court finds in favor of the defendant with regard to count two.
C
Next, the court addresses the claim of innocent misrepresentation as alleged in count three. "In Connecticut, a claim of innocent misrepresentation . . . is based on principles of warranty, and . . . is not confined to contracts for the sale of goods . . . A person is subject to liability for an innocent misrepresentation if in a sale, rental or exchange transaction with another, [he or she] makes a representation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it . . . even though it is not made fraudulently or negligently . . . We have held that an innocent misrepresentation is actionable, even though there [is] no allegation of fraud or bad faith, because it [is] false and misleading, in analogy to the right of a vendee to elect to retain goods which are not as warranted, and to recover damages for the breach of warranty . . ." (Citations omitted; internal quotation marks omitted.) Gibson v. Capano, supra, 241 Conn. 730.
Liability for an innocent misrepresentation may be circumvented by contractual waiver. "Waiver is the intentional relinquishment or abandonment of a known right . . . [It] stems from voluntary conduct of a party whereby [he or she] is absolutely precluded . . . from asserting rights which might have otherwise existed . . ." (Citation omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007). Furthermore, the court must enforce contract terms, including waiver clauses, unless the contract "is voidable on grounds such as mistake, fraud or unconscionability." Gibson v. Capano, supra, 241 Conn. 730-31. This is because the freedom of contract "includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract." Id., 730. So, a court "may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability." Id., 730-31. Therefore, "in the absence of a claim of mistake, fraud or unconscionability, a clause disclaiming reliance by the buyer on the seller's representations is a valid contract term"; id., 731; and is sufficient to defeat a claim of innocent misrepresentation. Solieri v. Polletta, Superior Court, judicial district of Waterbury, Docket No. CV 95 0128524 (March 8, 2002, Pittman, J.).
The plaintiff claims that the defendant represented that she had no knowledge of the presence of mold or conditions that could lead to the growth of mold, and that she had no knowledge of any water drainage problems. As such, she contends that the property was not as represented by the defendant. She further alleges that the representations made by the defendant and her real estate agent were made when the defendant had the means of knowing that the representations were false and had a duty to know the truth. She contends that her reliance on the misrepresentations of the defendant in executing the agreement negates any waiver contained in the contract and further argues that the waiver contained in the agreement is ineffective because it was executed under a mistake of fact.
The defendant asserts that the plaintiff waived her right to recover her alleged damages pursuant to the disclaimer clause in the agreement with regard to the defendant's representations in the agreement. The defendant contends that the relevant contractual language, as noted above, constitutes a complete waiver of any warranties, promises, or reliance on her representations. The plaintiff counters that her reliance on the unchallenged misrepresentations of the defendant in executing the agreement negates any waiver made. She contends that she did not intentionally relinquish her reliance on the defendant's representations. She further argues that Paragraph 7 and 7(I) provided a physical inspection contingency.
The subject disclaimer clause is similar to the clause contained in Gibson. In that case, the plaintiff buyer sought damages against the defendant seller for termite damage discovered after the closing date. The court noted that the agreement between the parties contained a disclaimer clause, which provided that "neither the Seller, nor any representative of the Seller has made any representation upon which the Buyer relies with respect to the condition of the property covered by this agreement, except as hereinbefore expressly set forth." Gibson v. Capano, supra, 241 Conn. 731-32. The court further noted that the agreement provided that the sale was conditioned upon satisfactory building and termite inspection; id., 727; and the plaintiff's inspection revealed that the house had been previously treated for termites. Id., 734. The court ruled that the plaintiff did not assert any improprieties in the formation of the contract, and stated that "the clear and unambiguous disclaimer of warranties in the contract between the plaintiffs and the defendants must be given effect and that the plaintiffs' breach of warranty claim is precluded." Id., 732. The court further noted that "[d]espite their actual knowledge of the property's prior condition, the plaintiffs agreed to the clause in paragraph six of the contract that disclaimed their reliance on representations made by the defendants. [W]here a party realizes that he has only limited information about the subject of the contract, but treats that knowledge as sufficient in making that contract, he is deemed to have assumed the risk of a mistake." (Internal quotation marks omitted.) Id., 734.
Here, the plaintiff was notified of the water infiltration conditions by her independent inspector and was warned of the potential additional damage and mold in areas that could not be inspected, and acknowledged that there were areas of the property which the defendant had no knowledge and that the disclosure area did not encompass those areas. The plaintiff has presented no credible evidence that the defendant had any knowledge of mold or mold conditions in the property at any time prior to its purchase by the plaintiff. The testimony of the professional who inspected the property prior to the closing revealed no indication of the presence of mold. Thus, there is no credence to the allegation that the defendant knew, or should have known, of the presence of mold or a mold condition. Further, pursuant to the language contained in the disclosure report, the plaintiff acknowledged that there were areas of the property of which the defendant had no knowledge. As such, the plaintiff cannot claim reliance on anything which the defendant allegedly represented about those areas of the property.
Moreover, in order to negate a disclaimer clause in a contract, the plaintiff must prove fraud, mistake or unconscionability in the inducement of the contract. This the plaintiff has not done. The plaintiff has not met her burden of proof with regard to the innocent misrepresentation claim. The defendant has met her burden, by a preponderance of the evidence, with regard to her defense of waiver.
Accordingly, the court finds in favor of the defendant with regard to count three.
D
Finally, the court addresses the plaintiff's claim of breach of contract as alleged in count four. As stated by the Appellate Court in Bouchard v. Sundberg, 80 Conn.App. 180, 189, 834 A.2d 744 (2003), "the key elements of a breach of contract . . . are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." The standard of proof in a breach of contract action is a preponderance of the evidence. Waicunas v. Macan, 151 Conn. 134, 137, 193 A.2d 709 (1963). "Fraud vitiates all contracts, written or otherwise . . ." Harold Cohn Co. v. Harco International, LLC, 72 Conn.App. 43, 49, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). "The two types of remedies available in [fraud in inducement of contract] actions are rescission of the underlying contract and restitution, or affirmance of the contract and recovery of the damages caused by the defendant's fraud . . . If the plaintiff rescinds the contract and seeks restitution, then both the plaintiff and the defendant ordinarily must restore to each other what each had received in the transaction." (Citations omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 32, 889 A.2d 785 (2006).
Turning to the plaintiff's claim of breach of contract, the plaintiff contends that she was induced into the execution of the agreement because the defendant either knowingly withheld information or made fraudulent misrepresentations. Specifically, the plaintiff claims that the defendant represented that she had no knowledge of the presence of mold or conditions that could lead to the growth of mold, and that she had no knowledge of any water drainage problems. She alleges that she relied on these representations, purchased the property and incurred expenses. She argues that the property was not as represented by the defendant in that it had substantial mold growth, substantial water drainage problems, previous roof leaks and suffered from previous water incursion, all in breach of contract. The defendant, on the other hand, argues that this allegation must fail because it is essentially a tort action which was specifically waived by the terms of the contract. The defendant contends the plaintiff's allegation of a breach of contract is really another claim for misrepresentation. The defendant also argues that the plaintiff does not specify which provision of the contact has been breached.
There is no disagreement as to the fact that both parties successfully executed the agreement, and that the plaintiff paid the full agreed upon price. Therefore, the allegation is that of breach of performance on the part of the seller. The plaintiff has not met her burden of proof with regard to the breach of contract claim. The plaintiff has waived any claims of warranties, representations or promises with respect to the condition of the property, pursuant to the disclaimer clause in the contract. Indeed, the plaintiff was aware of the conditions of the property via her own independent investigation, yet proceeded with the purchase of the property without making any further investigation.
The court further finds that the damages incurred by the plaintiff for remedial work done on the property was for conditions unrelated to the allegations as contained in the plaintiff's complaint and, further, were covered by the contractual waiver language as contained in the agreement. Specifically, the work and expense incurred rebuilding the north wall was caused by a leak in the flashing under the doors adjacent to the deck on the north end of the property and unrelated to the water incursion on March 1, 2007. There is no relationship between the condition of the north wall and the water incursion which occurred on March 1, 2007.
Further, the condition of the north wall was concealed and not known to the defendant, the plaintiff or anyone else who inspected the property. In addition, the Tiger report indicates rot under the doors on the north end of the property, but the plaintiff took no steps to follow up on that notation. Because the court finds that the information contained in the disclosure report were accurate and truthful based upon the knowledge of the defendant, the plaintiff has not met her burden of proof to substantiate her allegations that the defendant had knowledge of the presence of mold or conditions leading to mold. Further, she has not met her burden to prove that the water incursion of March 1, 2007 caused the plaintiff to incur expense to remove the mold and any other remedial efforts made to the home by the plaintiff.
Accordingly, the court finds for the defendant with regard to count four.
III CONCLUSION
Accordingly, judgment is entered in favor of the defendant as to all counts.