Opinion
No. CV 07-5014574
January 5, 2009
MEMORANDUM OF DECISION
I.
The plaintiffs filed a six-count second revised complaint, dated September 11, 2008, alleging breach of contract, fraud/deceit and violation of CUTPA.
The defendants filed an amended answer, dated October 31, 2008, asserting the following special defenses: Statute of Frauds, Connecticut General Statutes, § 52-550; Statute of Limitations, § 52-576— 52-581; and, the doctrine of laches.
In their complaint, the plaintiffs allege the following facts. The defendant, Gregory Lichatz, was in the business of residential and commercial real estate development. During the late summer of 2000, the plaintiffs, Joel and Jessica Tinney, agreed to purchase a home from the defendants at 104 Ash Swamp Road, Glastonbury, Connecticut. On August 3, 2000, the Town of Glastonbury approved a subdivision of the property; 104 Ash Swamp Road was the front lot of the two-lot subdivision (Lot 1). As a condition of approval, the defendants were required and orally agreed to replace the septic system serving the home at 104 Ash Swamp Road when Lot 2 was sold.
The plaintiffs further allege that the defendants verbally promised the plaintiffs that pursuant to the subdivision approval for Lots 1 and 2, they would replace the septic system serving Lot 1 when they conveyed Lot 2. Relying on the defendant's verbal promise to replace the septic system before they conveyed Lot 2, the plaintiffs purchased Lot 1 on September 1, 2000. Lot 2 was conveyed on or about October 12, 2004. Subsequent to the purchase of Lot 1, the defendants verbally reiterated their promise to the plaintiffs that they would replace the septic system for Lot 1 when they conveyed Lot 2. Since the conveyance of Lot 2, despite repeated requests by the plaintiffs, the defendants failed to replace the septic system for Lot 1.
II.
A hearing was held on November 4, 2008 on the plaintiffs' complaint. It was stipulated that Jessica Tinney be removed as a plaintiff and Joel Tinney be the only plaintiff. The plaintiff first presented the testimony of John Rook, the Town Planner for the Town of Glastonbury. Mr. Rook has been with the Town of Glastonbury for 21 years; he serves as staff to the Town's Planning Zoning Commission. In said capacity he reviews zoning applications and subdivision plans.
The plaintiff introduced Exhibit 1, which is a "Subdivision and Site Plan prepared for Gregory Lichatz, 104 Ash Swamp Road, Glastonbury, Connecticut" dated March 22, 2000. Said site plan shows parcel #104 and parcel #80. Shown on both parcels is "approximate location existing septic system."
Exhibit 2 is entitled "letters of approval" prepared for Gregory Lichatz, 104 Ash Swamp Road, Glastonbury, Connecticut dated March 22, 2000. One such letter is from David W. Boone, Director of Health, it is dated January 20, 2000 and is directed to Conservation, WPCA and TPZ Commissions. It is re: Lichatz Subdivision — Ash Swamp Road, and states the following:
Soil testing was conducted on this site during the Spring of 1999. The soils are typically fine, sandy loams underlain by glacial till. Plans revised 11-11-99 by Reino E. Hyyppa Associates have been reviewed for compliance with the Public Health Code.
The Department recommends approval of this proposal using on-site sewage disposal and private well water supply, with the following condition:
"1) The leach field for the existing house (#104/Lot 1) be abandoned and a new leach field be installed as indicated on the above referenced plan, prior to conveyance of Lot 2."
Mr. Rook indicated that the condition concerning the leach field was not complied with and he called Mr. Lichatz to that effect. Subsequently, Mr. Rook sent a letter to Mr. Lichatz dared September 27, 2007.
Said letter was read into the record and reminded the defendant about the conditions under the subdivision approval.
Mr. Rook indicated that after the sale of the property to the plaintiff, he left the issues raised in his letter up to the parties.
The defendants point out that Exhibit 2 demonstrates that the Health Officer only required relocation of the leach field, and not a new septic system as relocation of the leach field was necessary because of the proposed driveway leading to Lot 2.
John Deckert is the Chief Sanitarian for two years, and he has been with the department for the Town of Glastonbury for twenty years. He testified that the existing septic system was adequate and the reason a change of the septic system was required in 2007, was because the plaintiffs were making an addition to their house from two bedrooms to four bedrooms. He also indicated that a leach field may be moved without replacing the septic system.
The plaintiff presented the testimony of John Fay, a licensed contractor involved with sub-surface disposal, who was contacted by the plaintiffs in 2004 regarding a new septic system for 104 Ash Swamp Road. Mr. Fay ultimately installed the sewer system at a cost of $28,290 in 2007. The cost was based on a system for a four-bedroom house, if the system were for a two-bedroom house, the cost would be $20,362. Mr. Fay stated that the cost of relocating only the leach field would be $17,662 including a pump chamber, however, if the system were installed in the front of the house the cost would be $17,662 minus $8,500 or $9,162.
Mr. Fay also indicated that the system needed to be changed because of the addition to the house and that the existing sewer system could have continued in service.
The defendant, Gregory Lichatz, testified that he is in the floral business and not real estate development. He stated that he handled the subdivision process and that one of the conditions of approval was to move the leach field, not to replace the septic system. Mr. Lichatz asserts that when negotiating the sale of 104 Ash Swamp Road, he dealt mainly with Joel Tinney's father and that he never discussed, with Joel Tinney or his father, that he would move the leach field.
The property was sold to the plaintiff on September 1, 2000 for $130,000. Prior to purchasing the house, Joel Tinney lived there for about six months. Gregory Lichatz stated he never obligated himself to put in a new septic system for $28,000, and that the new owner of 104 Ash Swamp Road was responsible for the cost of moving the leach field.
Joel Tinney contradicted the testimony of Gregory Lichatz, by stating that before he purchased the property, Gregory Lichatz repeatedly said he would replace the septic system, although he did not say when he would do so.
Joel Tinney stated further that none of the alleged promises by Gregory Lichatz were reduced to writing. Also, that Joel Tinney was planning a new septic system before Lot 2 was sold, as he needed a new septic system because of the addition to his house. The new system was needed to obtain a certificate of occupancy for the addition to the house from two bedrooms to four bedrooms.
Lynn Lichatz testified that although she owned 104 Ash Swamp Road in 2000, she was not involved in the negotiations with Joel Tinney, and that Gregory Lichatz was involved with the subdivision plans concerning 104 Ash Swamp Road.
Lynn Lichatz conveyed the property to Joel T. Tinney, by warranty deed dated September 1, 2000, recorded in Volume 1374 at Page 326 of the Glastonbury Land Records
At the conclusion of the plaintiff's case the defendants made a motion for judgment. The court agrees with the defendants that the plaintiffs had not made out a prima facie case of fraud/deceit and CUTPA and granted judgment for the defendants on these counts. Therefore, the only remaining counts are one and two, breach of contract as to the defendants.
III.
The plaintiff contends that the defendants are obligated to pay for the septic system because Gregory Lichatz orally promised to do so, and also because it was a condition of the site plan approval for Lots 1 2. As to the alleged oral promises, both the plaintiff and the defendants presented contradictory testimony. The plaintiff said, "The court is left with deciding whom to believe since both parties' testimonies were completely at odds." (Trial Brief, p. 11.)
In making such a determination the court must consider the evidence in view of the circumstances and decide what is probable and what is improbable. Also, the burden of proof is on the plaintiff to prove the allegation of his complaint by a preponderance of the evidence. A basic definition of preponderance of the evidence is more likely than not. It is that amount of evidence that would tilt the scales ever so slightly in favor of the party asserting the claim, State v. Bradley, 60 Conn.App. 534.
The salient facts are that Gregory Lichatz, acting for his wife, Lynn Lichatz, obtained a subdivision approval on August 3, 2000 for property owned by Lynn Lichatz at 104 Ash Swamp Road, Glastonbury, Connecticut. On September 1, 2000, Lynn Lichatz transferred said property to Joel Tinney. Mr. Tinney resided in the premises for about six months prior to taking title. Apparently, no purchase and sales agreement existed before the closing, and at the closing there was no escrow held for any further performance.
Subdivision approval was conditioned upon the defendant relocating the leach field when Lot 2 was sold. Lot 2 was sold on October 7, 2004
In September of 2004, Mr. Tinney filed with the Town of Glastonbury for an expansion of their home from two bedrooms to four bedrooms, however, the expansion was not completed until 2007, when the new septic system was placed and the leach field relocated.
The credible evidence shows that Mr. Tinney resided at 104 Ash Swamp Road for about six months prior to his purchase of said property. Mr. Tinney made no complaints about any deficiencies in the existing septic system. The testimony of John Deckert, the Chief Sanitarian for the Town of Glastonbury, indicated that the existing septic system was adequate. Also, John Fay, a licensed contractor, pointed out that the septic system needed to be changed because of the addition to the house and that the existing system could have continued in service. Also, the plaintiff applied for a new septic system in September of 2004 which was prior to the sale of Lot 2 which occurred in October of 2004. The first time the plaintiff sought a new septic system was when he decided to expand his home, from two bedrooms to four bedrooms.
Further, there was admittedly no written memorandum of any promise by the defendants to install a new septic system. Moreover, it is typical that if such a commitment were in effect at the time of closing, the buyer's attorney would have requested an escrow agreement. In the present case, at the closing on the property, there was no escrow agreement to provide a new septic system by the seller.
The evidence shows that the purchase price of the property was $130,000, although there was an issue if the price could have been $10,000 higher, in any event, it appears improbable that a seller would obligate himself for what turned out to be an expenditure of $28,290 on a purchase price for the house of $130,000 or even $140,000.
The circumstances of this case leaves one with the probing question, why would a seller obligate himself to install a new septic system, when the existing one was still operational. It does not comport with common sense that a seller would do so. Also, it does not accord with common sense that a buyer who claims such a promise would not have it reduced to writing, and why he would wait about seven years to assert his claim.
Common sense would dictate that a reasonable seller would not so obligate himself and a reasonable buyer would reduce such an alleged promise to writing and proceed on his claim in a more timely fashion.
In its trial brief, the defendants make a compelling argument that any agreements with regard to the sale of the property would have been documented at the closing. Also, the defendants argue that if there were some agreement regarding obligations to be completed after the closing there would have been some type of escrow agreement.
The credible evidence shows that the septic system was operational when the house was sold to Mr. Tinney. Also, the septic system lasted for almost seven years before it was replaced by Mr. Tinney because he wanted to expand his house from two bedrooms to four bedrooms.
The court finds that it is improbable that based on the circumstances of this case a reasonable seller would obligate himself to pay for the installation of a new septic system.
Based on the credible evidence, the court finds that the plaintiff has not tilted the scale ever so slightly in his claim of a breach of an oral contract by the defendants.
Therefore, the court finds that the plaintiff has not sustained his burden of proof to establish his claim of a breach of an oral contract.
IV.
The plaintiff claims that by virtue of John Rook's letter, it was the obligation of the defendants under the subdivision approval conditions to fulfill said conditions. The plaintiff argues that the conditions of the subdivision approval are personal to the defendants. The defendants contend that the subdivision approval runs with the land and became the obligation of the plaintiff upon the transfer of the property to him.
The defendants cite Reid v. Zoning Board of Appeals, 235 Conn. 850, where the court stated: "it is well settled that variances run with the land and are not personal in nature." Also, in Griswold Hills of Newington, L.P. v. Newington Planning Zoning Commission, 14 Conn. L. Rptr. 405, the trial court held: "[t] here is no real difference, in terms of this discussion, amongst any of the land use permits, whether it be an inland wetlands permit, a variance, a site plan, special permit or subdivision permit. Thus, Garibaldi and Fromer are controlling; the special permit approval and site plan approval run with the land."
The court concludes that the subdivision approval runs with the land and became the obligation of the plaintiff upon transfer of the property to him.
However, as to this issue, the plaintiff states, in his trial brief, that the question of whether conditions run with the land or whether the Town of Glastonbury could enforce such conditions against the plaintiff or both are irrelevant. That is so because of the claimed oral promise by Gregory Lichatz. The plaintiff alleges that he relied on that promise and bought Lot 1.
By virtue of this argument, the plaintiff is basing his claim on the claimed oral promise by Gregory Lichatz.
The court concludes that the position of the defendant is more persuasive as to the issues in this case.
The court finds that based on the credible evidence and the circumstances of this case, the plaintiff has not established by a preponderance of the evidence a breach of contract, as alleged in counts one and two.
V.
Although the foregoing is determinative of the issues in this case, the parties in their trial briefs addressed the special defenses raised by the defendant. Therefore, to be complete the court will address those issues.
In asserting the special defense of the Statute of Frauds, the defendants cite Conn. Gen. Stat. § 52-550 which states in part, "no civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property . . ." The defendants refer to State v. Hahn, 207 Conn. 555, 562, which held, "Contracts for the sale of real estate must contain with certainty, without regard to parol proof, at least the essentials which describe the subject of the sale, its terms, and the parties to the contracts, thereby furnishing evidence of a complete agreement."
The plaintiff contends that an agreement to replace a septic system in the future is not an agreement for the sale of real property or an interest in real property, citing the cases of Maguire v. Kiesel, 86 Conn. 453 and Bostwick v. Leach, 3 Day 476.
The court agrees with the plaintiff's position on this issue and finds that the defense of Statute of Frauds would not apply.
As to the issue of the Statute of Limitations, the court agrees with the plaintiff that, even if the Statute of Limitations applies, the breach, if any, took place on October 12, 2004, when the deed was recorded for the sale of Lot 2; but, the plaintiff commenced the action on October 11, 2004, the day the marshal picked up the writ, summons and complaint for service (Exhibit 10). The court finds that the defense of Statute of Limitations would not apply.
The defendants contend that the doctrine of laches applies, which if established would bar recovery. Laches consists of two elements. First, there must have been an inexcusable delay and second, that delay must have prejudiced the defendant, Bozzi v. Bozzi, 177 Conn. 232.
The defendant argues that the plaintiff waited inexcusably to raise his claim of breach of contract. The alleged agreement took place in 2000 and the defendant was to move the septic system when Lot 2 was sold which was October 2004.
The court agrees with the defendant's position that the delay by the plaintiff to bring this claim is inexcusable and prejudices the defendant because of the likely increased cost to relocate a septic system.
The court concludes that the doctrine of laches would apply to bar recovery by the plaintiff.
CONCLUSION
For the foregoing reasons the court finds that the plaintiff has failed to present sufficient evidence to prove a breach of contract against the defendant.
In that the plaintiff has failed to prove his claim by a preponderance of the evidence, judgment may enter for the defendants.