Opinion
No. CV 05 4001918
October 23, 2006
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
This case arises out of the plaintiffs' purchase of a residential property located in Seymour, Connecticut, from two of the defendants, Paul and Norma Dube (the Dubes). The plaintiffs, Nadine K. and David Russo, allege the following facts in the complaint. The third defendant, DeWolfe Co., Inc. (DeWolfe), acting through its authorized agent, John Montefalco, who is now deceased, acted as plaintiffs' agent in their purchase of the property from the Dubes. At the time, the fourth defendant, Sharon W. McGrath, was acting as the Dubes' real estate agent. She also represented the fifth defendant, Kanayo N. Rupwani, doing business as Rupwani Associates, who was the listing agent for the property. Pending before the court are motions for summary judgment filed by DeWolfe and the Dubes. As discussed below, these motions are denied.
Before the plaintiffs made a down payment on the property, they received a disclosure form in which the Dubes apparently indicated that they did not know whether an underground fuel tank existed on the property. The plaintiffs hired a home inspector to inspect the property. During the course of the inspection, the inspector told the plaintiffs, Montefalco and McGrath that it was probable that an underground oil tank was or had been located on the property, and that the four of them should investigate further. Montefalco told the plaintiffs that he would find out more regarding whether a tank was previously located on the property. Prior to the closing, when the plaintiffs inquired about the tank, Montefalco responded that it had been taken care of. According to the plaintiffs, they relied on this response from Montefalco to conclude that the tank had been removed or that measures had been taken to ensure that it was not a concern. The plaintiffs claim further that they relied on Montefalco's statement in proceeding with the closing. They subsequently discovered that an underground fuel tank does exist on the property. The plaintiffs allege that the tank poses an environmental hazard as well as a potential health hazard to them and their children and will require them to engage in remediation.
On January 4, 2006, the plaintiffs filed a ten-count complaint against the defendants. Only counts one through five and nine remain before the court. In count one, the plaintiffs allege that DeWolfe breached its fiduciary duty to them. In counts two through four, respectively, the plaintiffs allege that Dewolfe, through its agent Montefalco, committed fraud, and made negligent and innocent misrepresentations. In count nine, the plaintiffs allege that DeWolfe's actions violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In count five, the plaintiffs allege that the Dubes' disclosure that they did not know of the existence of the tank constitutes fraud.
On March 21, 2006, the plaintiffs withdrew counts six, seven, eight and ten, in which they alleged claims against McGrath and Rupwani. On April 24, 2006, DeWolfe filed an apportionment complaint against McGrath and Rupwani.
On March 19, 2006, DeWolfe filed a motion for summary judgment as to counts one through four and count nine, and the Dubes filed a motion for summary judgment as to count five. On June 19, 2006, the plaintiffs submitted a single memorandum in opposition to both motions. On July 3 and. 7, 2006, respectively, DeWolfe and the Dubes filed their replies. The court heard oral argument on July 17, 2006.
Both movants submitted affidavits, deposition transcripts and several other documents in support of their motions. In particular, DeWolfe submitted, inter alia, excerpts from three depositions which it attempted to authenticate through the affidavit of its counsel. The Dubes submitted, inter alia, a properly certified copy of David Russo's deposition.
The plaintiffs object to the deposition transcripts that the defendants submitted on the ground that the defendants failed to authenticate them. According to the plaintiffs, DeWolfe's attorney does not have the authority to authenticate the deposition transcripts and the Dubes did not provide a certified copy of the transcript on which they rely. Although DeWolfe responded that its counsel's affidavit properly authenticated the deposition transcripts, DeWolfe subsequently submitted copies of certification pages for all three transcripts. The Dubes responded that they submitted copies of the relevant certification pages.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including, writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Furthermore, § 10-2 of the Connecticut Code of Evidence provides in relevant part that "[a] copy of a writing, recording or photograph is admissible to the same extent as an original unless . . . a genuine issue is raised as to the authenticity of the original or the accuracy of the copy . . ."
The plaintiffs do not challenge the authenticity of the original certifications or the accuracy of the copies thereof. DeWolfe's supplemental submissions cured the plaintiffs' objection to DeWolfe's deposition transcripts, and their objection to the Dubes' deposition transcripts is not well founded. Accordingly, the plaintiffs' objections are overruled.
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
I DEWOLFE'S MOTION FOR SUMMARY JUDGMENT
DeWolfe argues that it is entitled to summary judgment as to counts two and nine, the plaintiffs' fraud and CUTPA claims, because the plaintiffs cannot prove two of the elements of a cause of action for fraud, which forms the basis for both claims. Specifically, DeWolfe contends that the plaintiffs cannot establish that it knowingly made a false statement to them, or that they relied on such a statement. As to the former element, DeWolfe contends that Montefalco's statement that everything was taken care of was too vague and insufficient to support a cause of action for fraud. Regarding the element of reliance, DeWolf contends that the evidence indicates that the plaintiffs did not rely on Montefalco's statement.
The plaintiffs respond that their fraud claim is premised on Montefalco's statements that he would and did follow up on the question of whether an underground tank was located on the property. They further argue that issues of material fact exist about whether Montefalco falsely told them that the tank had been taken care of. In addition, they contend that justifiable reliance is not a required element of a claim for fraud, and in any event, that they were entitled to rely on Montefalco's statements due to their fiduciary relationship with him. The court agrees with most but not all of the plaintiffs' contentions.
"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 . . . The determination of what acts constitute fraud is a question of fact . . ." (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 518, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
In addition, a party asserting a cause of action for fraud "must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which . . . we have described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn.App. 518. For definitions of these terms, see Wallenta v. Moscowitz, 81 Conn.App. 213, 220-21, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004).
Regarding the first two elements, "[a] representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation . . . Accordingly, such a promise may constitute actionable fraud if it is blended with a misrepresentation of a material fact and an evasion of the very promise, after the promisee has performed." (Citations omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 681, 902 A.2d 30 (2006). Moreover, under Connecticut law, "[t]he intentional withholding of information for the purpose of inducing action has been regarded . . . as equivalent to a fraudulent misrepresentation." Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 407, 456 A.2d 325 (1983).
Here, DeWolfe does not dispute that Montefalco told the plaintiffs that he would resolve their concerns regarding the existence of an underground storage tank, or that he later told them that he had done so. Instead, DeWolfe contends that the statements were too vague and may not have been false. However, the "vagueness," truth or falsity of these statements are material facts at issue. DeWolfe has not met its burden of demonstrating the absence of genuine issues of fact as to whether Montefalco's statements constituted vague or definitive representations or that they were false. Indeed, the plaintiffs have submitted evidence demonstrating that these issues remain unresolved. Specifically, Nadine Russo testified that after the home inspector told the plaintiffs, Montefalco and McGrath that they needed to find out if there was an oil tank on the property and where it was located, she told Montefalco that the plaintiffs wanted to find out this information before they proceeded with the purchase of the property. Both of the plaintiffs testified that Montefalco said that he would find out about the tank. They both also testified that he later assured them that he had done so and that everything was "all set." Finally, the plaintiffs testified that shortly after the closing, they discovered that an oil tank did exist on the property and that they encountered significant problems with it.
On the other hand, the court rejects the plaintiffs' position that reliance is not a relevant consideration here. The Appellate Court has specifically stated that "[t]he requirement of reliance applies . . . to an action for fraud." Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 683, 825 A.2d 210 (2003). The court agrees with the plaintiffs, however, that summary judgment is precluded because a genuine and material factual dispute exists on the issue of reliance. The evidence establishes that DeWolfe agreed to act as the plaintiffs' sole agent in the purchase of the property and that it owed a fiduciary duty to them in regard to the transaction. Although the plaintiffs hired an inspector to inspect the property, Montefalco was present at the inspection and, when the inspector raised the issue about an underground storage tank, Montefalco specifically stated that he would look into the matter. Both of the plaintiffs testified that they relied on the statements they received from Montefalco, even though they expected but did not receive documentation from him showing that the tank had been taken care of prior to the closing.
Moreover, the Appellate Court has recognized that "[a] real estate broker is a fiduciary." (Internal quotation marks omitted.) Heaven v. Timber Hill, LLC, 96 Conn.App. 294, 304, 900 A.2d 560 (2006).
As DeWolfe notes, a party may not be able to satisfy the reasonable reliance element of a misrepresentation claim when the party performs an independent inspection that provides him with actual knowledge of correct information sufficient to negate an alleged misrepresentation:
See Gibson v. Capano, 241 Conn. 725, 733-34, 699 A.2d 68 (1997); and Visconti v. Pepper Partners Ltd. Partnership, supra, 77 Conn.App. 683. In the present case, however, the information that the plaintiffs obtained from the inspector did not provide them with actual knowledge of information that was contrary to Montefalco's alleged misrepresentations. According to the evidence, Montefalco's representations were made in response to an equivocal report given by the inspector as to the existence of a tank. "Where there is a misrepresentation, the fault of the victim in failing to discover the truth does not preclude relief unless it is so extreme as to amount to a failure to act in good faith and in accordance with reasonable standards of fair dealing." Pacelli Bros. Transportation, Inc. v. Pacelli, supra, 189 Conn. 409. In summary, DeWolfe has not presented evidence that demonstrates that the plaintiffs' reliance on Montefalco's statements was unreasonable, and particularly in regard to its burden on a summary judgment motion, DeWolfe certainly has failed to show that there is no material factual dispute concerning the reasonableness of the plaintiffs' reliance on these statements. "[Our Supreme Court has] 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, 580, 657 A.2d 212 (1995).
As previously noted, in regard to the plaintiffs' CUTPA claim asserted in count nine, DeWolfe seeks summary judgment solely on the ground that the CUTPA claim fails because the plaintiffs cannot prove fraud. As just discussed, DeWolfe has not met its burden of showing that it is entitled to summary judgment on the fraud count, and therefore, its motion for summary judgment is denied as to count nine alleging CUTPA.
As to counts one, three and four, DeWolfe argues that the plaintiffs' claims for breach of fiduciary duty and negligent and innocent misrepresentation must fail because the plaintiffs have not disclosed an expert witness who will testify either as to the appropriate standard of care or proximate cause. Additionally, DeWolfe again contends that it is entitled to summary judgment because the plaintiffs have also not produced any evidence that they reasonably relied on the actions or statements of DeWolfe or its agents.
In support of its first argument, DeWolfe points out that according to the court's scheduling order, the plaintiffs were required to disclose their expert witnesses by December 2, 2005, and they have not made any expert disclosures. "A trial court may issue a scheduling order for the timely disclosure of the plaintiff's expert witnesses. Practice Book § 13-4(4) authorizes a trial court to impose sanctions for failure to comply with such a scheduling order." McVerry v. Charash, 96 Conn.App. 589, 590, 901 A.2d 69 (2006). Thus, the time for disclosing expert witnesses has passed and the plaintiffs have not moved for leave to disclose experts. Additionally, however, the court notes that an order precluding the plaintiffs from calling experts has not issued and the case is not presently scheduled for trial in light of the pending motions for summary judgment.
Moreover, Practice Book § 13-4(4) provides in relevant part: "[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert [and] the subject matter on which the expert is expected to testify . . . to all other parties within a reasonable time prior to trial." When a party fails to disclose its expert witness in accordance with these provisions, the trial court may preclude the party from presenting the testimony of the expert witness if, in the context of a motion to preclude such testimony, "`the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of the trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party . . .' Practice Book § 13-4(4)." Vitone v. Waterbury Hospital, 88 Conn.App. 347, 355-56, 869 A.2d 672 (2005).
"The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard . . . Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Citations omitted; emphasis in original; internal quotation marks omitted.) LaPage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002). Accordingly, as a general rule, expert testimony is required in actions premised on medical malpractice; Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005); legal malpractice; Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987); and, according to a least one case, tortious conduct by real estate agencies; Parker v. Shaker Real Estate, Inc., 47 Conn.App. 489, 495, 705 A.2d 210 (1998). Thus, the Appellate Court "has approved the grant of a summary judgment in a medical malpractice case when . . . it is evident that the plaintiff will be unable to produce at trial an Expert witness to testify regarding the applicable standard of care . . . We have also upheld the setting aside of a verdict when such testimony has been precluded by an order of the trial court because of the plaintiff's untimely disclosure of the name of his expert." (Citation omitted.) Bourquin v. B. Braun Melsungen, 40 Conn.App. 302, 314, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996).
Nevertheless, expert testimony is not invariably necessary in all cases involving an individual's breach of a professional standard of care. Our Supreme Court has noted that "[a]lthough expert testimony may be helpful in many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of the trier of fact . . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters." (Internal quotation marks omitted.) State v. Smith, 273 Conn. 204, 211, 869 A.2d 171 (2005); see generally, Vanliner Insurance Company v. Fay, Memorandum of Decision on Motion to Reconsider, Superior Court, judicial district of Fairfield/Bridgeport at Bridgeport, Docket No. 98 0352037 (July 6, 2004; Stevens, J.), aff'd, (AC 26323; October 17, 2006). ("Expert testimony is not necessary if it will not assist the trier of fact in understanding a fact in issue or when the issue is sufficiently gross or obvious so as to be within the field of knowledge of the trier . . .")
More specifically, "[t]here is an exception to [the rule requiring expert testimony] where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person." (Internal quotation marks omitted.) Dubreuil v. Witt, 80 Conn.App. 410, 420-21, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 785, 860 A.2d 698 (2004) (applying exception in a legal malpractice action); accord, Bourquin v. B. Braun Melsungen, supra, 40 Conn.App. 315-17 (recognizing exception in medical malpractice action); Paul v. Gordon, 58 Conn.App. 724, 728, 754 A.2d 851 (2000) (recognizing exception in legal malpractice action); Vanliner Insurance Company v. Fay, supra, Conn.App. (AC 26323; October 17, 2006) (recognizing exception in negligence action against insurance adjuster.)
On the present record, DeWolfe has failed to establish that it is entitled to summary judgment on the ground that the plaintiffs have not identified an expert to testify about the standard of care and causation. According to the evidence, the plaintiffs' allegations are as follows. Montefalco represented the plaintiffs as a real estate agent of DeWolfe in the purchase of the property. DeWolfe does not contest its fiduciary relationship with the plaintiffs. Montefalco was with the plaintiffs when the inspector retained by them indicated that there may be an underground fuel tank on the property and advised them that further investigation was warranted. The plaintiff, Nadine Russo, told Montefalco that she wanted to get the information about this possible fuel tank before the purchase of the property, and in response, Montefalco told the plaintiffs that he would find out about the tank. According to the plaintiffs, prior to the closing, Montefalco told them that he had looked into the question about the tank and assured them that everything was all set, when in fact an underground fuel tank existed, creating significant problems in their use and enjoyment of the house.
To the extent that DeWolfe contests these allegations, material factual disputes exist precluding summary judgment. On the other hand, to the extent that DeWolfe assumes the truth of these allegations for the purposes of its summary judgment motion, the court cannot find as a matter of law that the conduct at issue did not involve an obvious and gross want of care and skill, and as a consequence, the court cannot conclude that expert testimony will be required at the trial of this matter. This issue is better addressed at the time of trial, rather than on the present record. Accordingly, at this stage of the proceedings, the plaintiffs' failure to disclose an expert witness does not demonstrate that DeWolfe is entitled to judgment as to counts one, three and four. DeWolfe has failed to show that there are no material issues of disputed fact and that it is entitled to summary judgment as a matter of law.
Regarding DeWolfe's second argument on the issue of reliance, our Supreme Court "has long recognized liability for negligent misrepresentation. We have 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 . . . 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." (Citations omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987). "Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant make a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation." Giametti v. Inspections, Inc., 76 Conn.App. 352, 364, 824 A.2d 1 (2003). As previously explained in the discussion of the plaintiffs' fraud claim, genuine issues of material fact exist as to the question whether the plaintiffs reasonably relied on Montefalco's representations. Therefore, on this ground as well, Dewolfe has not met its burden of establishing that it is entitled to summary judgment as to counts one, three and four.
II THE DUBES' MOTION FOR SUMMARY JUDGMENT
In their motion, the Dubes argue that they are entitled to summary judgment as to count five, the plaintiffs' claim against them for fraud, because even if the plaintiffs can prove that the Dubes misrepresented facts regarding the existence of the tank, the plaintiffs cannot prove that they reasonably relied upon the misrepresentations. They contend that once the plaintiffs' inspector alerted the plaintiffs to the possibility that an underground storage tank was or had been located on the property, it was no longer reasonable for the plaintiffs to rely on the statement that the Dubes made in the residential property disclosure form. The plaintiffs' argument in opposition to the Dubes' motion is that reasonable reliance is not an element of a cause of action for fraud. As previously explained, reliance is an element of a cause of action for fraud. Nevertheless, the Dubes have also failed to meet their burden of showing the absence of a material factual dispute on this issue in order for summary judgment to enter in their favor.
The Dubes used the term "unkn" in the portion of the disclosure form that pertained to the existence of an underground fuel tank, and they contend that by this term they intended to convey that an underground oil tank was on the property, but that they did not know where the tank was located or its age.
As previously stated, the Appellate Court has explicitly stated that "[t]he requirement of reliance applies . . . to an action for fraud." Visconti v. Pepper Partners Ltd. Partnership, supra, 77 Conn.App. 683. Also as previously explained, a party may be unable to establish reliance on a misrepresentation if he has acquired the correct information through his own independent inspection or investigation. Id. However, the inspector in this case merely informed the plaintiffs that there was a possibility that a tank existed, and the Dubes have not established that the plaintiffs had actual knowledge that a storage tank was located on the property. Thus, summary judgment is unavailable because issues of fact exist as to what the Dubes conveyed or intended to convey in the disclosure statement, how the plaintiffs relied on this information, and whether any such reliance was reasonable.
CONCLUSION
Therefore, for the foregoing reasons, the motions for summary judgment are denied. The case flow office is directed to set a new date for jury selection and trial.
So ordered.