Yvonne Coachman–Francis v. Connecticut Attorneys Title Insurance Co. et al. (2012)

Ruling on Motion for Summary Judgment

Defendant Beryl Woodstock (the defendant) moves for summary judgment on the complaint of the plaintiff, Yvonne Coachman–Francis, who alleges breach of contract and misrepresentation in the defendant's sale of land to her.   The defendant raises the issues of res judicata, merger by deed, and statute of limitations.   The court grants summary judgment on the misrepresentation counts based on the statute of limitations but denies the motion in all other respects.

I

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.”  Practice Book § 17–49.   The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute.   See Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000).  “Correspondingly, the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  (Internal quotation marks omitted.)  Id. “Mere assertions of fact ․ are insufficient to establish the existence a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)   United Services Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 110, 698 A.2d 914 (1997).  “To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book ․ §§ 17–45 and 17–46 ․ which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial.   If he does not so respond, summary judgment shall be entered against him.”  (Internal quotation marks omitted.)  Doty v. Shawmut Bank, supra, 430.¹  Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.   See Practice Book § 17–46;  see also United Services Automobile Ass'n. v. Marburg, supra, 110.

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”   (Internal quotation marks omitted.)  Doty v. Shawmut Bank, supra, 58 Conn.App. 431.

The undisputed facts are that the plaintiff purchased the property known as 489 Broad Street in Windsor from the defendant at a closing on March 31, 2006.   Approximately two years later, two sinkholes emerged in the driveway near the garage.   Soon thereafter the plaintiff discovered a concrete culvert that ran underneath her property, down her driveway, and under her garage, with water discharging out of the rear foundation wall of the garage.

On or about September 2, 2008, the plaintiff filed suit against the defendant in small claims court alleging that the defendant knew of, but did not disclose, the “brook” and that the house was susceptible to drainage and sink holes.   In October 2008, the plaintiff filed suit in small claims court against the company that performed the home inspection prior to the closing.   The plaintiff alleged that the company failed to report that there was an active water stream or brook flowing through the property.

In January 2009, after a trial, a magistrate denied the plaintiff's claims against the defendant, finding that the plaintiff had not met her burden of proof.   In April 2009, a magistrate denied the plaintiff's claim against the inspection company, finding that the plaintiff failed to submit the matter to arbitration.

The plaintiff filed this complaint in superior court on or about June 2, 2010.   Count two alleges that the defendant breached the real estate contract.   Counts three and four allege misrepresentation and fraud against the defendant.   Counts one and five, which are not at issue in this motion, state claims, respectively, for title insurance liability against the Connecticut Attorneys Title Insurance Company and for homeowners insurance liability against the Liberty Mutual Group.

II

The defendant contends that because the plaintiff has already litigated a small claims case on this matter the doctrine of res judicata bars this action.   Under this doctrine, “[a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties ․ upon the same claim or demand ․ Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.”  (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 460, 998 A.2d 766 (2010).   There is no dispute that the small claims session of the superior court is a court of competent jurisdiction for purposes of res judicata.   See Dontigney v. Roberts, 73 Conn.App. 709, 711, 809 A.2d 539 (2002), cert. denied, 262 Conn. 944, 815 A.2d 675 (2003).   Nor does the plaintiff dispute that the parties are the same or that the claims are ones that were or could have been raised in the prior action.

The plaintiff instead relies on the rule that “res judicata does not apply to judgments obtained through fraud or collusion.”  Weiss v. Weiss, supra, 297 Conn. 470.   The plaintiff focuses on the defendant's testimony at the small claims trial, as recited by the magistrate, that “she did not know about a drain.”  (Plaintiff's Ex. 8.) The plaintiff argues that this testimony was fraudulent.   In support of this argument, the plaintiff relies on evidence that, in May 1990, when the defendant purchased the property, the appraisal report noted that there was piped water running underneath the driveway and garage and that an engineering report documented the observation that a culvert ran directly under the driveway and garage of the property.  (Plaintiff's Exs. 3, 4.) In addition, the plaintiff cites the defendant's deposition testimony in this case in which the defendant acknowledged that, after she purchased the property, a neighbor had informed her that the garage was built on a culvert and that the defendant had seen a stream going towards her garage.   (Plaintiff's Ex. 6, pp. 24, 37–38.)

This evidence, particularly when construed in the plaintiff's favor, creates at least a fact issue as to whether the defendant testified falsely at the small claims trial.   It therefore precludes summary judgment on the res judicata defense.   At trial, the plaintiff will, of course, have to prove any fraud by clear and convincing evidence.   See Campbell v. Plymouth, 74 Conn.App. 67, 83, 811 A.2d 243 (2002).²

III

The defendant additionally moves for summary judgment on the second count, which alleges breach of contract, based on the doctrine of merger by deed.   Under this doctrine, “the terms of the deed ․ automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights.”  (Internal quotation marks omitted.)  Biro v. Matz, 132 Conn.App. 272, 280 A.2d (2011).   The defendant argues that, since the plaintiff accepted the deed, the contract to purchase the land has been completely performed and there can no longer be any breach of that contract.  Id., 279.

An exception to the doctrine of merger by deed exists when there is misrepresentation or fraud in the inducement of the contract to purchase the property.   See Matyas v. Minck, 37 Conn.App. 321, 336–37, 655 A.2d 1155 (1995).   The evidence cited above suggesting that the defendant was aware of, but failed to disclose, the culvert at the time of the plaintiff's purchase suffices to create at least a fact issue as to whether there were such misrepresentations or fraud.   Accordingly, the court declines to grant summary judgment on count two.

IV

In both counts three and four, the plaintiff alleges “actionable misrepresentation and nondisclosure.”  (Complaint, count three, para. 26;  count four, para. 24.)   The defendant raises the defense of statute of limitations.³  The defendant argues that the applicable statute for negligent misrepresentation is General Statutes § 52–584, which provides for a two-year limitation period in cases of “injury to ․ personal property ․ caused by negligence.” ⁴  There is some support for this position, but it has not been clearly adapted by our appellate courts.   See Goncalves v. Superior Plating Co., Superior Court, judicial district of Fairfield, Docket No. CV085015711 (September 9, 2010, Levin, J.).   There is at least room for doubt as to whether any negligent misrepresentation in this case caused “injury to ․ personal property” rather than just economic or commercial loss.

The court need not decide whether this two-year provision applies.⁵  The alternative statute of limitations for negligent misrepresentation would be General Statutes § 52–577, which provides for a three-year limitation period for an “action founded upon a tort.” ⁶  In view of the facts of this case, as discussed herein, the outcome would be the same even if this three-year statute of limitations applies.   Further, there is no dispute that the statute of limitations applicable to actions for fraudulent misrepresentation, which arguably the complaint also alleges, is the three-year period found in § 52–577.   See Wedig v. Brinster, 1 Conn.App. 123, 135–37, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984).   Accordingly, the court will apply the three-year statute of limitations.

The next issue is when the limitations period began to run.   The statute provides that the three-year period runs from “the date of the act or omission complained of.”  General Statutes § 52–577.   This language points to the complaint as the reference point for defining the acts of misrepresentation “complained of.”   See also Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995) (“The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.”  (Internal quotation marks omitted.)   Count three of the complaint alleges that there were misrepresentations about the existence of the culvert in the Comprehensive Owners/Sellers Affidavit that the defendant completed “[a]s part of the Plaintiff's purchase of the Property.”  (Complaint para. 21.)   Count four alleges misrepresentation in that:  “[i]n connection with the closing, the Seller also provided the Plaintiff with a Residential Property Condition Disclosure Report in which she represented that the Property had no water drainage problems and that there were no easements or rights in third parties to use any part of the Property.”   Thus, in both counts, the “date of the act or omission complained of” was the purchase or closing date, which was March 31, 2006.

The plaintiff's response is that the defendant could and should have informed her about the culvert at any point in time after the closing.   Essentially, the plaintiff, without briefing the matter, relies on the continuing course of duty doctrine.   Under this doctrine, the statute of limitations may be tolled if there is “evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.”  (Internal quotation marks omitted.)  Watts v. Chittenden, 301 Conn. 575, 584, 22 A.3d 1214 (2011).   In such cases, however, “there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.”  (Internal quotation marks omitted.)   Id. Our Supreme Court has specifically rejected this doctrine in the context of a real estate purchase because of the absence of a fiduciary or other special relationship between the parties.   The Court has stated:  “[w]e are aware of no authority holding that the perpetrator of a fraud involving merely a vendor-vendee relationship has a legal duty to disclose his deceit after its occurrence and that the breach of that duty will toll the statute of limitations.”  Fichera v. Mine Hill Corporation, 207 Conn. 204, 210, 541 A.2d 472 (1988).

Accordingly, the plaintiff cannot establish that the statute begins to run on any date later than March 31, 2006.   There is no dispute that the plaintiff filed this action on June 2, 2010.   The misrepresentation counts were therefore filed after the three-year limitation period had expired.

The plaintiff, however, has also pleaded that the defendant's misrepresentations constituted a “fraudulent concealment of the Plaintiff's cause of action under General Statutes § 52–592, thereby tolling any statute of limitations applicable to an action against the Seller until the date Plaintiff discovered that Seller had actual knowledge of the existence and condition of the culvert.”  (Complaint, count three, para. 27;  count four, para. 25.)   Presumably, the plaintiff meant to rely on General Statutes § 52–595, which provides:  “[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” ⁷

To establish fraudulent concealment under this statute, the plaintiff must show, by clear and convincing evidence, that the defendant:  “(1) had actual awareness of the facts necessary to establish the plaintiff's cause of action, (2) intentionally concealed those facts from the plaintiff and (3) concealed the facts for the purpose of delaying the plaintiff's filing of a complaint on his cause of action.”  Campbell v. Plymouth, supra, 74 Conn.App. 83.   Of these elements, the critical one is the third.   While, as discussed, the plaintiff has produced some evidence that there may have been fraudulent misrepresentations at the time of closing, the plaintiff has produced no evidence that the defendant “concealed the facts for the purpose of delaying the plaintiff's filing of a complaint on his cause of action.”  Id. As the defendant argues, the plaintiff could not have filed the small claims actions if the defendant had concealed the fact of her alleged misrepresentation.   Indeed, in the small claims complaint, the plaintiff alleged that “I contacted town and state transportation officials and I was informed that you or someone representing your interests had discussions with them concerning issues you had with the brook on the property.   This is a clear indication that you were aware of the brook and the property being susceptible to such water-related issues (drainage, sink-holes, etc.).   During the sales period of this property, you did not honestly give full disclosure of this issue.”  (Defendant's Ex. B.) Thus, the plaintiff's own statement, which reveals her awareness of the defendant's alleged knowing misrepresentations, refutes the notion that the defendant fraudulently concealed a cause of action.   Accordingly, there are no genuine issues of material fact concerning the fraudulent concealment exception to the statute of limitations.   See also Campbell v. Plymouth, supra, 82–83 (“The plaintiff has not raised a genuine issue of material fact that his failure to meet the statutory time limit for filing a claim was due to the defendant's alleged fraudulent concealment, and the defendant therefore is entitled to judgment as a matter of law”).   Accordingly, the defendant is entitled to summary judgment on counts three and four.

V

The court grants summary judgment on counts three and four of the complaint.   It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. Practice Book § 17–45 provides in part:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”Practice Book § 17–46 provides:  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.   Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”.  FN1. Practice Book § 17–45 provides in part:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”Practice Book § 17–46 provides:  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.   Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”

FN2. The defendant denies any fraud or misrepresentation and has marshaled evidence tending to show that the plaintiff's home inspection report alerted her to the problem.   The resolution of these factual disputes is one for the finder of fact..  FN2. The defendant denies any fraud or misrepresentation and has marshaled evidence tending to show that the plaintiff's home inspection report alerted her to the problem.   The resolution of these factual disputes is one for the finder of fact.

FN3. The defendant does not raise a statute of limitations defense to the breach of contract count because the limitation period for such actions is six years, which has not run.   See General Statutes § 52–576(a)..  FN3. The defendant does not raise a statute of limitations defense to the breach of contract count because the limitation period for such actions is six years, which has not run.   See General Statutes § 52–576(a).

FN4. Section 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”.  FN4. Section 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

FN5. Assuming that § 52–584 applies, the plaintiff suggests that it does not bar the misrepresentation claims because “the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․” was within two years of the superior court action.   The remainder of the statute, however, contains a repose portion that provides:  “except that no such action may be brought more than three years from the date of the act or omission complained of ․” See Barret v. Montesano, 269 Conn. 787, 793–94, 849 A.2d 839 (2004).   The language of this repose exception is virtually identical to that of General Statutes § 52–577 which, as discussed herein, bars the misrepresentation claims.   Therefore, the plaintiff does not benefit from relying on the date of discovery language in the first part of § 52–584..  FN5. Assuming that § 52–584 applies, the plaintiff suggests that it does not bar the misrepresentation claims because “the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․” was within two years of the superior court action.   The remainder of the statute, however, contains a repose portion that provides:  “except that no such action may be brought more than three years from the date of the act or omission complained of ․” See Barret v. Montesano, 269 Conn. 787, 793–94, 849 A.2d 839 (2004).   The language of this repose exception is virtually identical to that of General Statutes § 52–577 which, as discussed herein, bars the misrepresentation claims.   Therefore, the plaintiff does not benefit from relying on the date of discovery language in the first part of § 52–584.

FN6. Section 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”.  FN6. Section 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

FN7. Section 52–592, which the plaintiff cited in her complaint, applies to accidental failures of suit..  FN7. Section 52–592, which the plaintiff cited in her complaint, applies to accidental failures of suit.

Schuman, Carl J., J.