Opinion
No. CV-06-4004629 S
March 21, 2007
MEMORANDUM OF DECISION
The parties have stipulated to the following facts. The plaintiffs, James and Stacy Cooper live in St. Louis Missouri. The defendant, Douglass Wright, Trustee, is the owner of 28 Fenwick Avenue in the Bourough of Fenwick, Old Saybrook, Connecticut (the "premises"). In the summer of 2005 the Coopers wanted to vacation in Fenwick, which they had done in a pervious year.
Wright offered 28 Fenwick Avenue for rent during the summer of 2005 and Wright and the Coopers signed a lease of that property for two weeks beginning on July 30, 2005. The Coopers paid Wright $6,000 per week, $12,000 in advance prior to arriving in Old Saybrook.
The Coopers were represented by Karen Conniff, a real estate agent, and Wright was represented by Nikki Hostnik, a real estate agent, during the transaction. Communication regarding the rental occurred by e-mail, telephone and in person among the parties and agents during the period of June through August 2005.
The Coopers vacated the premises on August 2, 2005 after spending three nights there. They made arrangements for another rental in Old Lyme at 44 Hatchett's Point Road for the period of August 2, 2005 to August 11, 2005 for $6,600.
After trial to the court the court finds the following additional facts. Wright owned the premises as Trustee for his father, who had acquired the premises in 1947. Wright's father had leased the premises several times in the 1980s but had determined that he did not want to lease it anymore after that.
The premises had not been leased since the 1980s when in March of 2005, Wright decided to contact Nikki Hostnik, a local real estate agent, about leasing it. There had been very little work done to the premises in many years and Wright was not sure that the premises were ready to be leased.
The Coopers had rented a house in Fenwick in the summer of 2003. They enjoyed the location because of its proximity to the water, the availability of tennis courts and a golf course and the activities available for their children, such as sailing classes. In 2005 the Coopers had four children, ages 16, 14, 5 and 2. Mr. Cooper thought that 2008 would probably be the last summer that the entire family could spend together because his 16-year-old son, Michael, had a summer job and expected that in future summers he would not be able to get time away from the job.
The Coopers called Karen Conniff and told her they wanted a rental in Fenwick. They also told her that they needed a place that was clean because their youngest child was a toddler, and they also needed a first floor bedroom to accommodate Mrs. Cooper's elderly parents who would be staying with them.
Ms. Conniff contacted Nikki Hostnik to inquire as to whether she represented anyone with a house available for rental in Fenwick. Hostnik told her that the Wright house was available. When Ms. Conniff inquired about air conditioning, Ms. Hostnik told her that the house was not air conditioned, but it did have an air conditioned bedroom on the first floor that would be available.
The two realtors toured the Wright house in early June of 2005. There were painters' vans parked at the premises. The nobs on the cabinets and refrigerator in the kitchen had been removed in preparation for being painted. The upstairs rooms appeared to have been prepared for painting with the walls scraped of paint. Ms. Conniff was concerned about the appearance of the house because it did not appear suitable to rent. However, Ms. Hostnik assured Ms. Conniff that the entire interior of the house was being painted and that everything would be freshly painted and "spic and span" by the end of June. Ms. Hostnik also remarked that the downstairs bedroom met the Cooper's needs for a room for their elderly parents.
Ms. Conniff conveyed Ms. Hostnik's representations about the premises to the Coopers, and in reliance on those representations, they signed a lease of the premises on June 30, 2005.
The Coopers took a charter flight to Connecticut from St. Louis because of their two small children. The cost of the flight was $8,916. When they arrived at the premises, they found that the lower level had been freshly painted, but the nobs were still off the drawers and the refrigerators and the upstairs had not been painted, appeared dingy and dirty and certain areas had paint chips on the window sill. The house appeared as if it had been prepared for a complete painting, but then the painting had abruptly stopped.
The photographs of portions of the upstairs showed paint chips and painted surfaces where the paint had either been worn away or sanded down so that the bare wood was showing. The Coopers reasonably expected that for $6,000 per week, the premises would not contain conditions hazardous to their children and would not look so dreadful.
The Coopers also found that the downstairs bedroom was locked. They contacted Nikki Hostnik and were advised that Wright's father's wife had passed away recently, and his father could not bear to have anyone stay in that bedroom. The Coopers advised Ms. Hostnick that the house was not as represented, they had relied on the representations that the house would be freshly painted and that the bedroom would be available. They requested a refund of their rent.
Ms. Hostnik was, unfortunately, caught in the middle between her principals, Wright and his wife, Mary, and the Coopers. The court finds that Ms. Hostnik was never advised by Wright that the downstairs bedroom would be off limits to the renters and was advised by Wright that the upstairs painting would be complete by the time the lease commenced.
Aware that she had (albeit unintentionally) misrepresented the premises to Ms. Conniff, the Coopers' agent, she attempted to prevail upon Wright to refund the rent. In an August 2, 2005 email she wrote:
[The Coopers] were under the impression that the upstairs interior would be painted. I recall that we had thought it would be painted, but realize that you didn't get to it.
In my opinion here are your options:
1. give the money back and move one (this is nicest and easiest)
2. give money back less the per diem rate for the three nights that they spent (this is very nice and reasonable).
3. make some sort of an offer to reimburse a portion of the rent — we can discuss.
4. refuse to give anything back because they signed the lease etc. This is going purely per the lease contract. Fresh interior paint and the renters acceptance of the property were not conditions of the lease. So, "black white" says their (sic) aren't entitled. There's black white and then there's reality.
E-mail date August 2, 2005 from Nikki Hostnik to Douglas and Mary Wright. (Emphasis added).
It is extremely unlikely that Ms. Hostnik would have advised her clients to return the money to the Coopers if no representation about the interior painting had been made. Unfortunately, Wright did not take Ms. Hostnik's advice and do the "nice" thing. He chose to keep the $12,000, ignoring the "reality" of the misrepresentations made to the Coopers.
In the First Count of the complaint the plaintiff alleges that the defendant breached his contract with the plaintiffs to provide a rental property which had a usable first floor bedroom and was in clean, freshly painted condition.
The elements of a breach of contract action are "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Bross v. Hillside Acres, Inc. 92 Conn.App. 773, 780-81, 887 A.2d 420 (2005).
There is clearly evidence of the formation of a contract here. The parties executed a lease agreement for the rental of the Wright premises. The Coopers performed in accordance with the contract by paying $12,000 required under the lease prior to their arrival in Connecticut.
The defendant has taken the position that the lease makes no mention of the fact that the premises would be freshly painted or that the downstairs bedroom would be available. The lease has no merger clause, and the evidence set forth above about those factors came in without objection. Based on that evidence, the court finds that the parties intended the representations concerning the paint and the bedroom to be a material part of the contract. See Suburban Sanitation Service, Inc. v. Millstein, 19 Conn.App. 283, 286-87, 562 A.2d 551 (1989).
The Coopers reasonably relied upon the representations of Wright, made through his agent, Nikki Hostnik, that the premises would be freshly painted and the first floor bedroom available. Wright was bound by the representations made by Nikki Hostnik. Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 619, 674 A.2d 805 (1996). However, when the Coopers arrived to take possession the house was not freshly painted and the first floor bedroom was unavailable. Wright did not deliver the premises as described and, therefore, breached the contract.
The Second Count of the complaint alleges unjust enrichment. 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. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Commission, 231 Conn. 276, 282-83, 649 A.2d 518 (1994). Since the court has found in favor of the plaintiffs on the breach of contract count, there is no need to employ the equitable remedy of unjust enrichment here.
The Third Count of the complaint alleges negligent misrepresentation. In order to recover for negligent misrepresentation the plaintiff must establish 1) that the defendant made a misrepresentation of fact, 2) that the defendant knew or should have known that the representation was false, and 3) that the plaintiff reasonably relied on the misrepresentation and 4) suffered pecuniary harm as a result. Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929 (2005).
In this case Wright, through his agent, misrepresented that the entire interior of the premises would be freshly painted and that the first floor bedroom would be available to the Coopers. In addition, Nikki Hostnik knew that the use of the first floor bedroom and the freshly painted premises were material conditions of the lease and that the Coopers relied on those conditions. This knowledge was imputed to her principal. Lane v. United Electric Light Water Commission, 88 Conn. 670, 674, 92 A. 430 (1914); Reardon v. Mutual Life Ins. Co., 138 Conn. 510, 516, 86 A.2d 570 (1952); West Haven v. United States Fidelity Guaranty Co., 174 Conn. 392, 395, 389 A.2d 741 (1978).
Wright testified that he had actual knowledge that the interior of the premises would only be fully painted if he got around to it and that the first floor bedroom was always off limits to tenants. Therefore, he knew or should have known that the representations to the contrary made by his agent were untrue.
The Coopers reasonably relied on Wright's misrepresentations by flying with their four children to Connecticut from Missouri. They clearly suffered pecuniary damages in that they paid for air transportation to Connecticut rather than vacationing in a place to which they could have driven, they paid Wright for two weeks, stayed for only three nights and paid for another rental.
The damages for the breach of contract and negligent misrepresentation counts are the same. The Coopers paid $12,000 for a rental that they did not use because the premises rented were materially different than represented by the defendant. The Coopers demanded a return of their advance rental on August 3, 2005. The defendant should have returned it. Therefore, the court awards the plaintiffs $12,000 plus interest under Connecticut General Statutes 37-3a at the rate of 10% per annum from August 3, 2005 in the amount of $1,955.76.
The Coopers presented evidence that they would have traveled by car to Michigan if they had been unable to secure an acceptable rental house in Connecticut. They chose to take a charter flight rather than a commercial flight because they have two small children. The cost of the air fare for the family of six was $8,916. While this amount may be higher than average comparable air fare, and the plaintiffs may have been able to `mitigate their damages by flying for a lower cost, the defendant, who has the burden to prove that the plaintiffs have failed to mitigate, Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn.App. 637, 644-45, 777 A.2d 745 (2001), has offered no evidence of what that lower cost might be. Therefore, the court also awards the plaintiffs $8,916 for their airfare for a total damages award, including interest, of $22, 871.76.