Opinion
No. CV05-4005879S
March 13, 2008
I. INTRODUCTION
This case involves a residential property located at 29 Clifton Street in West Haven, Connecticut. The plaintiff claims damages resulting from the purchase of that property, due to an allegedly defective sewer system. The amended complaint, dated February 5, 2008, is comprised of five counts and claims fraudulent misrepresentation/fraudulent inducement, negligent misrepresentation, innocent misrepresentation, breach of the covenant of good faith and fair dealing, and breach of contract. In his answer, the defendant has denied the essential allegations of the complaint.
A courtside trial was conducted on February 7, 2008. Prior to the start of evidence, the defendant withdrew the counterclaim which sought compensation for heating oil left on the premises. The parties filed their briefs on March 3, 2008. In her brief, the plaintiff indicated that she was withdrawing the claim for negligent misrepresentation.
II FACTS
The plaintiff, Tracie Crouse, and her husband, Anthony Crouse, Sr., resided in a rental property on Clifton Street in West Haven, Connecticut from mid-2002 to November 14, 2003. Mrs. Crouse first met the defendant, Ronald Mierzejewski, over Labor Day weekend in 2003, when she and her husband looked at the defendant's house which was situated across the street from the Crouses, and which had recently been put up for sale. Mr. Crouse had called the realtor, H. Pearce Company, in order to view the property located at 29 Clifton Street. Mr. Crouse knew Mr. Mierzejewski from a prior occasion, relating to the theft of a go-kart engine.
The asking price for the house, which was then 94 years old, was $125,900.00. During the negotiations, an offer was made of approximately $110,000.00; ultimately the property was purchased in Mrs. Crouse's name for the asking price of $125,900.00. Prior to Mrs. Crouse's signing the contract on September 19, 2003, the Crouses themselves inspected the property. They decided not to hire an outside expert to inspect the property, in light of Mr. Crouse's prior experience in working construction, including roofing, and remodeling. The Crouses, individually or together, went room to room inspecting the property, flushing the toilets, looking in the basement, and the like. No inspection was made of the sewer pipes, which were underground and inaccessible.
Mr. Crouse pled guilty on January 12, 2004 to the crime of making a false statement for an offense occurring on or about September 20, 2002; he was on federal probation through approximately January 2007.
Mr. Mierzejewski indicated on the Residential Property Condition Disclosure Report, which he signed on August 23, 2003, that he had no knowledge of any sewage system or plumbing system problems. Mrs. Crouse signed the Disclosure Report on September 7, 2003. Mrs. Crouse relied on these written representations in her decision to purchase the property. No other representations, written or oral, were made by Mr. Mierzejewski regarding the plumbing or sewer systems. However, the Disclosure Report indicated that the house structure was 94 years old, and Mrs. Crouse knew that the house was old and needed to be updated.
This report obligated the defendant to disclose any knowledge of problems with the sewage and plumbing systems. The seller's certification in this report indicates that the information is true "[t]o the extent of the Seller(s) knowledge as a property owner."
The Buyer's Certification in this report states that "[t]he buyer understands that there are areas of the property for which the seller has no knowledge and this disclosure statement does not encompass those areas."
Prior to the sale, Mr. Mierzejewski had some work done on the house, including repairs to the living and dining room ceilings, installation of circuit breakers, and capping off old gas lines; Mr. Crouse observed a plumbing truck parked at the property shortly before the closing. In the 40 years Mr. Mierzejewski had resided at the 29 Clifton Street property before selling it to the Crouses, he had never experienced any problems with the plumbing or sewer systems, except for an occasional run-of-the mill problem with a leaky faucet or requiring the use of a plunger, and one episode in the late 1990s where he noticed clear water bubbling by the front curb in the vicinity of the sewer line; following a phone call to the appropriate authority, that resolved without ever having any effect on Mr. Mierzejewski's plumbing or sewer systems. Mr. Mierzejewski never learned of any problem after that call, although he did subsequently notice a new patch in the street.
During his 40 years there, Mr. Mierzejewski never had any problems with any backup, and never had to call a plumber or anyone from the City of West Haven regarding any problems with his plumbing system or sewer system. He never had occasion to speak with anyone at his property on behalf of the City regarding the plumbing or sewer system or any related problems.
The closing for the property took place on October 31, 2003; the Crouses did not move in until November 14, 2003, in order to accommodate Mr. Mierzejewski, who was moving into a condominium which was not available until then. Immediately upon moving in, the Crouses started making renovations, including the installation of a full bath and a Jacuzzi on the second floor.
There were no problems with the plumbing until March 2004, when Mrs. Crouse became aware that the water was not draining from the kitchen sink. The Crouses called A1 Drain, who snaked the main line, which was heavily degraded, and subsequently verified root damage through the use of a camera. In early April 2004, the Crouses noticed driveway sinkage in the vicinity of the sewer line which was a sewer line collapse. Mr. Crouse rented a backhoe and compacter. Mr. Crouse operated the backhoe himself and with the help of his son and his son's friend, dug up and replaced the sewer line, over the course of a few days, replacing the sewer line from the house to the end of the driveway. Neither Mr. or Mrs. Crouse, nor anyone on their behalf, paid "Tim's Touch," a business run by a friend of Mr. Crouse, for work on the sewer line, as the work was done by Mr. Crouse and his helpers and not by "Tim's Touch."
Immediately following the sewer line replacement, water was still not draining properly. The Crouses called Rooter-Man, who determined that they could not clear the line because it was broken near the street. The City of West Haven came out and marked the street, and the Crouses called East Coast Plumbing and Drain Cleaning, Inc., who on April 21, 2004, replaced the sewer line from the end of the driveway to the street.
The Crouses have experienced no further plumbing or sewer problems since.
In the past, the City of West Haven, as a routine part of its then-existing program to clean out the main sewer lines throughout the City, had involvement with the main line from which the lateral line led to 29 Clifton Street. Videotapes taken of the main sewer line in 1993 revealed some blockage resulting from a root mass from a tree coming from the lateral line from 29 Clifton Street, most likely resulting in a partial blockage in the main line. Typically, such blockages would be removed though the use of a root cutter in the main line and a high pressure hose. Additionally, videotapes taken in 1997 showed that the tree root mass was no longer there. The camera angle did not allow a view into the lateral pipe beyond 8-12 inches; some constriction was seen, with no root ball or root mass extruding from the lateral.
William Norton, an employee of the City of West Haven for 22 years who essentially has overseen the sanitary system since approximately 1995 and whose duties include keeping records of sewer backups and problems, had no recollection of dealing with Mr. Mierzejewski, and had no information that Mr. Mierzejewski was ever notified of any problems with the sewer system. Pursuant to West Haven City Ordinance, § 191-53, the property owner is responsible for the costs of maintenance of the lateral line running from the house to the street up to and including the connection; if there were problems in the lateral line, such as with roots, the City would notify the homeowner. Mr. Norton offered no testimony as to any such notification to Mr. Mierzejewski.
Mark Magri, a subcontractor for the City of West Haven whose job duties entailed maintaining city sewer lines and pump stations for the past twenty years, had been to 29 Clifton Street and spoken to Mrs. Crouse on one occasion in 2004 or 2005. He remembered the house, although he was uncertain as to whether he had been there before Mrs. Crouse lived there. Prior to Mrs. Crouse, he had responded to a residence somewhere on Clifton Street approximately 10 or 15 years ago. At that time, he found no problems in the main city line, although the videotape revealed roots in the lateral pipe. Mr. Magri speaks to approximately 3 to 5 homeowners a day; if a problem was detected that day, either he or his partner would tell the homeowner to hire a plumber. Mr. Magri did not recognize Mr. Mierzejewski, who was present in the courtroom.
In short, Mr. Mierzejewski was neither aware of, nor notified of any problems with the plumbing or sewer systems, and had no reason to know of any problems. The Crouses never experienced any problems with water drainage, or their plumbing or sewer systems for the first four months they resided at 29 Clifton Street.
III DISCUSSION OF LAW A. COUNT ONE: FRAUDULENT MISREPRESENTATION/FRAUDULENT INDUCEMENT
"[I]t is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 296, 822 A.2d 1184 (2003). "All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a higher standard than the usual preponderance of the evidence, which higher standard [is] described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Harold Cohn Co. v. Harco International, 72 Conn.App. 43, 51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). "Generally, misrepresentations must relate to an existing or past fact. A promise to do something in the future is not actionable unless the promise is coupled with a present intention not to fulfill the promise." (Internal quotation marks omitted.) New Horizon Financial Services, LLC v. First Financial Equities, Inc., 175 F.Sup.2d 348, 352-53 (D.Conn. 2001). "[A]n assurance, wholly promissory in its nature, cannot be the basis of an action for fraud . . . [I]t could not be held fraudulent unless the [individual], when he made it, knew or had reason to believe that the corporation would not assume the obligation or gave the assurance recklessly or without belief that it would do so." (Citation omitted; internal quotation marks omitted.) Lowe v. Kohn, 128 Conn. 45, 51, 20 A.2d 407 (1941). "While some connection, direct or indirect, between a party charged with making false representations and a party relying thereon must be shown, it is not essential, in support of a cause of action resulting from false representations, that the false representations be shown to have been made directly to the party claiming to have relied upon them." (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 842-43, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001). Nevertheless, the party making the false representation to another must possess the intent or knowledge that the representations will be exhibited or repeated to a third party for the purpose of deceiving the third party, and furthermore, the false representation must actually deceive that third party. Id., 843.
The plaintiff claims that the defendant made fraudulent misrepresentations, both orally and written, to the plaintiff, indicating that the sewer system was in sound operational condition, for the purpose and with the effect of inducing the plaintiff to enter into a contract with the defendant to purchase the property. This claim must fail, in light of the court's findings that Mr. Mierzejewski was not aware of any plumbing or sewer problems, had never been notified of any such problems, and had no reason to know of any such problems. Simply put, Mr. Mierzejewski did not make any false misrepresentations.
B. COUNT TWO: NEGLIGENT MISREPRESENTATION
As indicated above, the plaintiff indicated in her brief that this claim has now been withdrawn.
C. COUNT THREE: INNOCENT MISREPRESENTATION
In Johnson v. Healy, 176 Conn. 97, 100-02 (1978), the Connecticut Supreme Court set forth the history behind the tort of innocent misrepresentation:
The scope of liability for innocent misrepresentation has varied with time and with context, in American law generally and in this court. Traditionally, no cause of action lay in contract for damages for innocent misrepresentation; if the plaintiff could establish reliance on a material innocent misstatement, he could sue for rescission, and avoid the contract, but he could not get affirmative relief. See Restatement (Second), Contracts 304, 306, and Introductory Note to Chapter 13 (Tentative Draft No. 11, 1976). In tort, the basis of responsibility, although at first undifferentiated, was narrowed, at the end of the 19th century, to intentional misconduct, and only gradually expanded, in this century, to permit recovery in damages for negligent misstatements. Prosser, Torts (4th Ed. 1971) 107. At the same time, liability in warranty, that curious hybrid of tort and contract law, became firmly established, no later than the promulgation of the Uniform Sales Act in 1906. In contracts for the sale of tangible chattels, express warranty encompasses material representations which are false, without regard to the state of mind or the due care of the person making the representation. For breach of express warranty, the injured plaintiff has always been entitled to choose between rescission and damages. Although the description of warranty liability has undergone clarification in the Uniform Commercial Code, which supersedes the Uniform Sales Act, these basic remedial principles remain unaffected. At the same time, liability in tort, even for misrepresentations which are innocent, has come to be the emergent rule for transactions that involve a commercial exchange. See Restatement (Second), Torts 552C (1977); Prosser, Torts (4th Ed. 1971) 107, pp. 710-14. In Connecticut law, strict liability for innocent misrepresentation in the sale of goods is well established. As long ago as Bartholomew v. Bushnell, 20 Conn. 271 (1850), this court held (p. 275) that "[if a man sell a horse to another, and expressly warrant him to be sound, the contract is broken, if the horse prove otherwise. The purchaser, in such case, relies upon the contract; and it is immaterial to him, whether the vendor did, or did not, know of the unsoundness of the horse. In either case, he is entitled to recover all the damages, which he has sustained." For similar reasons, strict liability for innocent misrepresentation was imposed in a construction contract in E.F. Construction Co. v. Stamford, 114 Conn. 250, 158 A. 551 (1932). In Stamford, the defendant's erroneous description of subsurface conditions materially affected the plaintiff's excavation costs. This court held the misrepresentation to be actionable, even though there was no allegation of fraud or bad faith, because it was 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.]" Id., 258. Stamford quotes, with approval, from 3 Williston, Contracts 1512, p. 2689 (1920): "If a man makes a statement in regard to a matter upon which his hearer may reasonably suppose he has the means of information, . . . and the statement is made as part of a business transaction, or to induce action from which the speaker expects to gain an advantage, he should be held liable for the consequences of reliance upon his misstatement." Id., 259. Bartholomew and Stamford together make it clear that liability for innocent misrepresentation is not a novelty in this state, that such liability is based on principles of warranty, and that such warranty law is not confined to contracts for the sale of goods."
The elements of a cause of action for innocent misrepresentation are "(1) a representation of material fact (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages." (Citations omitted) Matyas v. Minck, 37 Conn.App. 321, 333 (1995).
The plaintiff claims that she relied on the defendant's representations, both oral and written, concerning the condition of the sewer system and the lack of any prior problems, for the purpose and with the effect of inducing the plaintiff to enter into a contract to purchase the defendant's property. This claim must fail, in light of the court's findings that Mr. Mierzejewski was not aware of any plumbing or sewer problems, had never been notified of any such problems, had no reason to know of any such problems, and made only one disclosure, in writing, indicating that to his knowledge there were no such problems. The representation made by Mr. Mierzejewski, who lived there for 40 years, was in fact a true representation — he had knowledge of the sewer system, and to his knowledge, there had been no problems with it.
The defendant made no oral representations to the plaintiff regarding the plumbing or sewer systems. The only written representation made by the defendant was his representation on the Residential Property Condition Disclosure Report that to his knowledge, there were no problems with the plumbing or sewer systems. This representation was true, based on his 40 years residing in the home, with no problems with the plumbing or sewer systems.
D. COUNT FOUR: BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
"It 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." De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382, 388 (2004) (Citations omitted); (Internal quotations omitted).
A party breaches the implied covenant of good faith and fair dealing by impeding a party's right to receive benefits that he or she reasonably expected to receive under the contract in bad faith. Id. "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." Id.
The plaintiff claims that the defendant's intentional or negligent misrepresentations concerning the condition of the sewer system, the lack of any prior problems, and the failure to disclose past conversations with the sewer authority, breached the defendant's obligation of good faith and fair dealing with respect to the plaintiff. This claim must fail, in light of the court's findings that the only representation made by the defendant was a true representation, that the defendant never had any past conversations with the sewer authority, that the defendant had no prior problems with the sewer system, and that Mr. Mierzejewski was not aware of any such problems and had no reason to know of any such problems. Mr. Mierzejewski fulfilled his duties to deal fairly and in good faith with the plaintiff.
E. COUNT FIVE: BREACH OF CONTRACT
"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." Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006); Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007).
"Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion . . . A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Citations omitted; internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 151, 819 A.2d 216 (2003).
"In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself." BD Associates, Inc. v. Russell, 73 Conn.App. 66, 71, 807 A.2d 1001 (2002). "[A]ny ambiguity in a contract must emanate from the language used in the contract . . ." (Internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 88, 831 A.2d 211 (2003). "If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 88, 831 A.2d 211 (2003). "Where a contract term is ambiguous extrinsic evidence is admissible to assist the court in resolving the question of the parties' intent." (Internal quotation marks omitted.) Anchor Electrical Contractors v. Waterbury, Superior Court, judicial district of Hartford, Docket No. CV 98 582103 (October 25, 2001, Peck, J.).
The plaintiff claims that the defendant breached the contract for the sale of the house, in that the house, at the time of the sale and subsequent collapse of the sewer system, was not in the same condition as initially represented by the defendant. This claim must fail. The only representation made by the defendant regarding the plumbing and sewer systems was that there were no problems to his knowledge when he signed the Disclosure Report on August 23, 2003. Indeed, not only did the defendant never experience any problems, but the plaintiff did not experience any problems for over four months, until after the installation of a full bath and a Jacuzzi. Importantly, the plaintiff offered no credible evidence relating the cause of the sewer collapse to any pre-existing problems which predated the plaintiff's purchase of the house, and it is not for this court to speculate in that regard.
CONCLUSION
For the foregoing reasons, the court finds in favor of the defendant on the first, third, fourth, and fifth counts of the complaint.