West Middle Turnpike Realty v. Hammersla, No. CV 04-0083598 S (CT 1/27/2005)

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Unpublished Opinion

West Middle Turnpike Realty, LLC v. George Hammersla Opinion No.: 87435

No. CV 04-0083598 S

Superior Court of Connecticut

Judicial District of Tolland at Rockville

January 27, 2005

MEMORANDUM OF DECISION

SCHOLL, JUDGE.

Introduction

The Plaintiff, West Middle Turnpike, LLC, brings this action in six counts against the Defendant, George Hammersla. In the First Count of the Third Amended Complaint the Plaintiff claims breach of contract. The Plaintiff claims that the Defendant had listed his property at 14 West Middle Turnpike, Manchester, Connecticut for sale and had completed a residential property condition report on December 7, 2002. In the report the Defendant denied that there were any problems or leaks in the roof. The Plaintiff claims that as a result of the Defendant's representations it entered into a contract to purchase the property. On January 3, 2003 the Plaintiff provided the Defendant with a notice of unsatisfactory inspection and requested that the Defendant supply a satisfactory history of installation of any repairs and warranties of the roof. A closing on the property occurred on March 7, 2003. About one month later the Plaintiff became aware that water had leaked into the interior of one of the apartments in the property and as a result the roof was inspected. The inspection revealed that the roof was in fact in poor condition and in need of replacement. The Plaintiff claims that the Defendant breached his contract with the Plaintiff in that he misstated the condition of the roof in the Property Disclosure Report and did not disclose to the Plaintiff the true condition of the roof. In the Second Count the Plaintiff claims fraudulent misrepresentation and claims that the Defendant's misrepresentations as to the condition of the roof were knowingly and willfully made with the intent to induce the Plaintiff to purchase the property and that except for the Defendant's misrepresentations the Plaintiff would not have entered into the purchase agreement. In the Third Count the Plaintiff claims negligent misrepresentation in that the Defendant negligently misrepresented the condition of the roof. In the Fourth Count the Plaintiff claims innocent misrepresentation in that because of the Defendant's ownership of the property for some time prior to the transfer of title, the Defendant had special means of knowledge of the roof and its condition. In the Fifth Count, the Plaintiff claims a Connecticut Unfair Trade Practices Act violation in that the Defendant engaged in unfair and deceptive acts or practices prohibited by the Act. In the Sixth Count the Plaintiff claims a violation of Section 20-327(b) of the Connecticut General Statutes in that the Defendant knowingly misrepresented the condition of the roof in the statutorily mandated disclosure report. This count has been abandoned by the Plaintiff.

The Defendant appeared through counsel and filed an answer and six special defenses.

Trial on this matter was held on August 26, 2004. At that time the court heard testimony from a member of the Plaintiff, Glenn Beaulien; John McConville, the owner of Silktown Roofing; Charles Nai, a real estate inspector; Joseph St. Germaine, a tenant of the property; the Defendant, George Hammersla; and his wife, Barbara Hammersla; and received eleven exhibits. Simultaneous post-trial briefs were filed on October 15, 2004.

Findings of Facts

Certain facts alleged by the Plaintiff in the Complaint have been admitted by the Defendant. The Defendant admits that he is also known as Don Hammersla and that he was the owner of 14 West Middle Turnpike, Manchester, Connecticut, an apartment building. The Defendant had listed his property for sale and completed a Residential Property Condition Report on December 7, 2002, in which he checked "No" as to question 19 which inquires whether he had knowledge of any then known "roof leaks, problems." The Defendant admits he provided evidence of roof work to the Plaintiff. The Defendant also admits that Glenn Beaulieu assigned the contract of sale to the Plaintiff and the Plaintiff took title to and assumed possession of the property on March 7, 2003.

Based upon a preponderance of the evidence the court finds the following additional facts. Glenn Beaulieu is the owner of West Middle Turnpike Realty, LLC. He also owns a restaurant which adjoins the property at 14 West Middle Turnpike. That property is a four-family house. It has a flat roof. On December 7, 2002, the Defendant signed a Residential Property Condition Disclosure Report for the property in which he said "no" as to any roof leaks, problems. On December 13, 2002, Beaulieu also signed the report and acknowledged that any representations made in the report were not a warranty to the buyer and that it was not a substitute for inspections or other tests to determine the physical condition of the property. On that same date Beaulieu entered into a contract to buy the property. The contract provided for a home inspection and that within fifteen days the buyer would give the seller written notice of any inspection that did not meet the standards called for in the contract and if the buyer failed to do so, the seller had no responsibility or obligation concerning any condition to which the inspection provision applied. On December 28, 2002, Quali-Tech Northeast, LLC conducted an interior and exterior inspection of the property. In their report they noted: "Unable to fully observe roof covering due to snow cover. Advise obtaining history of installation and any repairs, warranties which may be in place, and `roof-walk' if snow melt permits, prior to closing on property." The report does not note any water damage to the interior of the property except for stains in the ceiling of the first floor bathroom that the tenant stated had been there for some time. The report notes that past leaks from the bathroom in the apartment above appeared to account for the stains. By Notice of Unsatisfactory Inspection dated January 2, 2003, the buyer advised the seller that: "Buyer requests that Seller remedy the following unsatisfactory condition(s) at Seller's expense prior to closing . . . Inspector was unable to inspect roof at time of inspection. Please supply satisfactory history of instulation (sic) and any repairs & warranties that may be in place. Buyer request (sic) that roof be inspected prior to closing if snow melts, if unable to inspect seller to warrant that roof is in satisfactory condition." The notice further provides that: "Buyer reserves buyer's right to terminate the contract within the time period provided in the contract (as it may have been amended) if buyer and seller cannot come to a mutually satisfactory agreement concerning these conditions." In response, the Defendant provided a copy of a proposal from Wilcox Roofing & Sheet Metal dated November 8, 1996 regarding certain work on the roof. The proposal indicates that it has a ten-year warranty. The Defendant represented that the work was completed in March 1997. The Plaintiff did not re-inspect the roof prior to the closing nor did the Defendant provide any warranty that the roof was in satisfactory condition. In February 2003 one of the tenants pointed out a small stain in the ceiling of his apartment to the Defendant. The Defendant thought it was dry and that the problem that caused it had been corrected. In October 2002 the Defendant had work done to repair the gutters which had been backing up. The closing on the property occurred on March 7, 2003. Shortly after the Plaintiff purchased the property, the same tenant brought to its attention water stains on the ceiling in his apartment. On April 23, 2003, Quali-Tech performed another inspection of the roof. Among their findings was that "[t]here was water ponding along the length of the rear roof edge, above the porch roof section. This edge has advanced deterioration, moisture damage and active water intrusion into the substrate roof layering and decking." They advised local repairs to or replacement of the damaged and discrepant sections of the roof. They did not conduct any inspection of the interior of the building nor did they reach any conclusion regarding the cause of the ceiling stains in the tenant's apartment. The Plaintiff did not pursue the warranty given by Wilcox nor did it accept the Defendant's offer to do so. Charles Nai, the inspector from Quali-Tech, believes that a roof installed in 1997 should last twenty to thirty years.

Discussion

The Plaintiff has the burden of proving its claims by a fair preponderance of the evidence. Preisner v. Illman, 1 Conn.App. 264, 267 (1984). The essence of the Plaintiff's claims are breach of contract and misrepresentation.

First Count—Breach of Contract

The Plaintiff claims that the Defendant breached his contract with it in that the Defendant had a contractual duty to make a full and fair disclosure of the potential problem with the roof. "`It is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . [E]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement . . . 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 . . . In accordance with these authorities, the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing.' (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002). To recover for breach of the duty of good faith and fair dealing, the plaintiffs had to 'allege and prove that the defendant[s] engaged in conduct design[ed] to mislead or to...