Cameron Foster et ux. v. Jacquelyn Nicolari (2012)

CORRECTED MEMORANDUM OF DECISION AFTER COURT TRIAL

I. NATURE OF THE PROCEEDINGS

This case arises out of the purchase by the plaintiffs of the defendant's single-family dwelling located at 36 Davin Drive in Naugatuck, Connecticut.   The closing of the transaction took place on March 28, 2005, as envisioned in the real estate “Sales Agreement” dated February 19, 2005.  (Plaintiff's Exhibit # 1), which, inter alia, reflects a purchase price of $257,000 for the three-bedroom house with a finished basement.   Some nine months after the transfer of title, the plaintiffs observed water on the basement floor which was entering the basement from the outside in the area where a wood stove was located.   The plaintiffs claim that since they have been residing at that dwelling, they have experienced water infiltration into the basement which, according to their complaint, has been “constant and severe.”

In this action, which the plaintiffs have brought in two counts, they seek to have the defendant held monetarily responsible for the future costs anticipated in order to re-mediate and eliminate the on-going infiltration of water into their basement.¹  Paragraphs # 1 through # 7 mis-numbered as paragraph # 5 of the plaintiff's complaint dated June 29, 2006, are incorporated into each of the two counts.   Specifically, the plaintiffs allege that during a tour of the home in October 2004, the defendant represented that there was no water seepage into or dampness in the basement and that based upon that representation, the plaintiffs signed the contract of purchase dated February 19, 2005, agreeing to purchase the dwelling for $257,000, subject to, inter alia, a mortgage contingency.   The transaction was completed and the real property was conveyed, via warranty deed, on March 28, 2005.  (Plaintiff's Exhibit # 2.)   In paragraph # 6, the plaintiffs further allege that:  “Subsequent to the closing and transfer title, the Plaintiffs discovered severe and constant water seepage and infiltration in the basement and the garage of the subject premises.” ²  (Emphasis added.)   The plaintiffs assert that as a consequence of the infiltration of water into the basement, they will incur considerable expense in order to re-mediate the condition.   The First Count is brought upon a theory of negligent misrepresentation.   In paragraph # 7 thereof, the plaintiffs allege that their damages were “the direct result of the negligence of the Defendant's failure to disclose the nature and extent of the water seepage and infiltration [in]to the property at 36 Davin Drive when she knew or should have known of the nature and extent of the same.”   In paragraph # 7 of the Second Count, which is based upon a theory of fraudulent representation, the plaintiffs assert that their damages were “the direct result of the misrepresentations of the Defendant in that she falsely represented the condition of the property at 36 Davin Drive, that she knew said representation was false when made, that said representation was made with the intent to have the Plaintiffs purchase the subject property and that the Plaintiffs in fact relied upon such representation.”

In her Answer (# 102) filed on January 14, 2008, the defendant denied that the plaintiffs sustained any damages as a result of any negligent or fraudulent misrepresentation allegedly attributed to her.   In response to the plaintiffs' allegation that she represented that the property had no water seepage or dampness in the basement and the further allegation that the plaintiffs discovered severe and constant water seepage and infiltration into the basement and garage, the defendant professes to have “no knowledge” and leaves it to the plaintiffs to prove those allegations.

The one-day trial was held on December 7, 2011, during which the court heard from six witnesses, four called by the plaintiff and two by the defendant.   The witnesses included the plaintiff husband, the defendant's former husband, the secretary of the Naugatuck building office, a remodeling contractor, the plaintiffs' realtor at the time of the purchase and the defendant's mother.   The court received eleven exhibits into evidence, seven from the plaintiffs and four from the defendant.   At the close of the trial the court set an agreed-upon briefing schedule.   The last brief was filed on January 13, 2012.

The court, after reading the pleadings;  reviewing all of the exhibits;  considering the testimony of all of the witnesses;  assessing the credibility of each;  and considering the post-trial briefs and cases cited therein;  for the reasons hereinafter set forth, finds the issue of liability in favor of the defendant.   In light of that finding, the court will not address in any detail the issue of damages as the plaintiffs have failed to prove by a preponderance of the evidence that any damages sustained by them, via the alleged accumulation of water in their basement, were the proximate result of any negligent representation made by the defendant.   The court further finds that the plaintiffs have failed to prove by clear, precise and unequivocal evidence that any such damages were the proximate result of any fraudulent representation made by the defendant.

II. RELEVANT AND MATERIAL FACTS

Two witnesses were called by the plaintiffs relative to the issue of liability—Cameron Foster (hereinafter referred to as the plaintiff husband) and Catherine Zurick, who was the plaintiffs' realtor at the time of the purchase.³  According to the plaintiff husband, the plaintiffs have resided in the house for six years, which, as noted, they purchased from the defendant for $257,000.   Title was conveyed via a warranty deed March 28, 2005, pursuant to a buy-sell agreement executed by the parties that including a seller's (defendant) disclosure statement dated October 15, 2004.   The house is a three-bedroom raised ranch with a finished basement and a utility room.   The plaintiff husband stated that he looked at the house on two occasions prior to his agreement to purchase.

Attached to and part of the buy-sell agreement (Plaintiffs' # 1), which was signed by the plaintiffs on February 15, 2005, and the defendant four days later, was a document entitled “Mold and Mold–Forming Condition Disclosure” and another entitled “Residential Property Condition Disclosure Report,” each of which was completed and signed by the defendant October 15, 2004, and each of which required the defendant, as the seller, to provide answers to specific questions contained therein.⁴

Paragraph 5.a. of the sales agreement is noteworthy.   It provides:  “Unless expressly stated herein, BUYER acknowledges that he has physically inspected the property.   BUYER further acknowledges that he has been urged to carefully inspect the property and, if desired, to have the property inspected by a qualified inspector.   The BUYER understands that there are areas of the property of which SELLER or an agent of the SELLER have no knowledge.   Any representations or statements by the SELLER or any agent of the SELLER are not warranties of any kind and are not a substitute for any inspections or warranties the BUYER may obtain.”   Emphasis added.   Included in the “Physical Inspection Addendum,” which was a part of the parties' agreement and was signed by the plaintiffs on January 30, 2005, were certain boxes checked by them that indicated the items they desired to be inspected by a qualified person of their choice.   Among the items checked was:  “Moisture or water penetration.”   Via her signature on the mold report the defendant, as seller, asserted that she had “no knowledge of the presence of conditions that could lead to the growth of mold (excessive humidity, water leakage, drainage problems, flooding, etc.).”

Several of the defendant's responses to the pre-printed questions that comprised the statutory residential condition report are relevant and material to the court's consideration of the issues.   The defendant's answer to Question # 1 reveals that the house was constructed in 1985 and that it was occupied by the defendant and her family for six years.   Question # 7 indicates that the electric hot water heater was replaced around the time that the defendant first occupied the dwelling.   Question # 17 inquires about “BASEMENT Water/Seepage/Dampness?   Explain amount, frequency and location.”   The defendant checked the “NO” box.   Question # 26 asks about “DRIVEWAY problems?”   The defendant explained;  “ice heaves/re-paving pending.”   Question # 30 inquires about “WATER DRAINAGE problems?”   The defendant responded:  “repaired left side w/12” pipe.”

After the contract was signed by the plaintiffs and the defendant, the plaintiffs, pursuant thereto, retained a qualified person, Marvin H. Schaeffer, to perform a complete inspection of the dwelling.   The inspection was performed on February 19, 2005.   In reviewing the inspector's report (Plaintiff's # 3), the court found several portions thereof to be of assistance in arriving at its ultimate decision.   The report clearly references the defendant's presence (in addition to both plaintiffs and a realtor) during the inspection and indicates that she provided the inspector with the information that followed.   Page i contains questions, all of which were answered by the defendant, including Question # 9 which clearly relates to the issues in this case.   The inspector asked:  “Have you ever had water in the basement from an exterior source?”   The defendant checked the “NO” box.   Question # 9 also asked:  “Have any waterproofing methods been completed to this home?”   The defendant did not check either the “YES” or “NO” box.   Question # 11 inquires as to the age of the hot water heater to which the defendant responded:  “new 2000.”   On page # 3 it is noted that the three-bedroom, wood framed raised ranch was built in 1985.   On page # 5 Schaeffer indicates that the “GUTTERS/LEADERS” are in fair condition but recommends that gutters should be installed in the front portion of the dwelling.   The inspector further noted that the leaders drained to the ground via underground pipes.   On page # 9 the inspector found the driveway condition to be fair, but commented that the “pitch [of the driveway] may not shed water properly from house or garage under all weather conditions.”   In assessing the “GRADE–RAIN RUNOFF” he noted that “Areas in Need of Improvement” included the left side and back yards and recommended an evaluation of the trees in the backyard.   Included under the category titled, “EVIDENCE OF WATER SEEPAGE” in a pre-printed portion of the report which, presumably, is part of all of Schaeffer's reports is the following paragraph, all of which is underlined:

The inspection for water seepage in basement areas is restricted to the visible evidence at the time of the inspection.   Finished areas of basements and stored items restrict the inspection for water seepage.   If there is no standing water present at the time of inspection, we look for signs of past water seepage.   During dry times it is not always possible to determine the extent of these problems or the existence of unseen water problems that may become apparent during wetter seasons.   The two most common causes of water seepage in basements are leaders emptying next to the foundation and improper grading around the foundation.   Any basement or lower level can be susceptible to water penetration during extremely heavy rainfall.   Until some living experiences been gained with the building, valuables should be stored off the floor slightly, when possible.   The use of a dehumidifier is recommended in the summer months.

On Page # 10, under the category of “EVIDENCE OF WATER SEEPAGE,” Schaeffer noted that he observed past water stains on the basement floor and further that he was unable to view the basement walls as it was a completely finished basement.   After they received the inspection report the plaintiffs, in a document entitled, “Inspection Response Form,” requested that six specific items be repaired/replaced and or that they be given an appropriate credit at the closing.   None of the items listed were related to the observed water stains or the disclosed drainage problems.   Defendant's Exhibit B.

The plaintiff husband claims that during the inspection the defendant represented that there were no issues with the basement and stated that she “never got one drop of water in the basement.”   The plaintiff insists that he placed reliance, not only on this statement, but on the defendant's written responses to items # 17 and # 30 in the disclosure form.   He further claims that said statements induced him to complete the purchase of the dwelling and stated that he would not have consummated the purchase had he known of the pre-existing water infiltration.   As to the water stains the inspector and said plaintiff observed on the basement floor, according to the plaintiff when this was pointed out to defendant she explained that a hot water tank had leaked, causing water to spill onto the basement floor resulting in the replacement of the water tank in 2000, as noted in the disclosure form.   As to the twelve-inch pipe referred to in the disclosure statement, prior to the sale to the plaintiffs, the town had put drains in the street.   The project was prompted by the flow of water over the yard, mostly due to the location of the home, which was built at the foot of a mountain.   See Defendant's Exhibit A (map photograph from Internet site).

The plaintiff husband stated that they first encountered water infiltration into their basement in December 2005, some eight months after the purchase.   They experienced the infiltration at least three times a year during the winter.   He noted that there was “some seepage” into the basement during Hurricane Irene this past fall.   In their complaint, the plaintiffs claim that the water infiltration is “severe and constant.”   Several photos taken by the plaintiffs were admitted into evidence and have been examined by the court.   Plaintiff's # 4(a-d).⁵

The plaintiff husband testified that he dug trenches in the front yard which has helped the problem only slightly.   Plaintiff explained that if the trenches freeze the water flows over the flue and into the basement.   The flue is opposite a basement closet in the left front portion of the house.   In the winter he treats the trenches with salt to prevent freeze up.   See Defendant's A & Plaintiff's # 5(a-c).  Apparently the plaintiffs complained to the town about a drainage problem without any meaningful response other than employees were not allowed to go upon private property.   As noted, despite allegations in the complaint to the contrary, there is no accumulation of water in the garage as the plaintiffs replaced the gutters as recommended by Schaeffer in his report.

On cross-examination, the plaintiff husband was questioned about a stove pipe in the front of the house which is opposite the closet and apparently a source of water seepage into the basement.   He explained that he replaced the original wood stove with a pellet stove, but the replacement pipe does not extend to the height of the original.   See P # 5e.   The plaintiff admitted that he was aware the defendant's husband had wrapped tarp around the original stove pipe extending to two feet above the pipe.   Michael Nicolari told him, prior to the consummation of the purchase, that he did this “to keep the rain water out.”   Subsequent to the closing, after he first experienced the infiltration, the plaintiff removed the tarp, which was caulked on the outside.

Michael Nicolari is the former spouse of the defendant.   Their twenty-five-year marriage was dissolved in 2010.   At all times relevant to this case, they resided together with their two children at the house in Naugatuck.   He stated that the house was purchased by them in 1999 with a finished basement containing two finished rooms, one area containing a bathroom, a television and guitar room, the other area containing a fireplace, another television, a couch and a wood stove.   Referring to Defendant's Exhibit C, which is his drawing depicting the project, he explained the procedure he used when he attached the tarp by using a bungee cord to wrap it around the stove pipe.   He did so because a “minor” amount of water was coming in from around the stove pipe during heavy rainfall.   He did this about a year and one-half after the house was purchased and claimed that the procedure worked.   He installed the twelve-inch drainage pipe which consisting of perforated pipe and stone.   He explained that water was flowing downhill between the houses.   He installed a curtain drain to the street;  the town then installed a basin to catch the runoff.

He stated that during the entire time that he and his family occupied the dwelling, he never experienced any water in the closet or garage.   He never saw a damp basement floor or evidence of water on the walls.   According to him, the basement was at all times, “nice, clean and dry,” adding that if it was not, he would never have kept his musical instruments there.   He did, however, recall a toilet backup in July 2001, and the flooding of the carpet perimeter due to a malfunction in the hot water heater which they subsequently replaced.

He did recall an incident in the winter of 2003–04, that might have been reported in the paper when there was a “babbling brook of water” running between the houses during a heavy rainstorm.   The defendant's mother, Barbara Daniels, testified that she also recalled what she referred to as the neighborhood “water problem.”   She explained that she has lived on the same street (Davin Drive) for over two decades.   She related an incident that winter when water was flowing in front of her house and then freezing.   She claimed it was caused by water running between two houses on the street (defendant and abutting neighbor) and that the problem first appeared in 2001, with the building of additional homes on the street.   She insisted that once the piping was installed by her then son-in-law, the problem was resolved.   As to the subject basement she testified that she was there “pretty much every day” watching TV with the children;  she claims that she never saw any water seep into the basement, but she does recall the installation of the tarp around the stovepipe and that water regularly accumulated outside the house, but not inside.   She does not recall seeing any damage to the inside of the basement.

In the winter of 2006, the plaintiff contacted Sullivan Brothers Remodeling, LLC, a company that has been in the home construction business for twenty-five years, for the purpose of obtaining an estimate to eliminate the water infiltration into the basement.   James Sullivan, the managing principal of the LLC, inspected the dwelling and prepared two estimates, however, although six years have since passed, the work has not as yet been done.   Sullivan explained each of the estimates.   The remedial measures that he recommended in Plaintiff's Exhibit # 7b were at a cost of $6,735.00.   In Plaintiff's Exhibit # 7a Sullivan recommended additional work at a cost of an additional $2,900.00.   He testified that although the work recommended in the first estimate would successfully re-mediate the water infiltration into the basement, the work recommended in the second estimate would result in “a really good fix.”   He admitted that both estimates would now need to account for price increases over the past six years, but would have to be adjusted downward due to the replacement of the stove, gutters and the trench work performed by the plaintiff since 2006, which would reduce the estimates by one-half.   Moreover, during cross-examination, Sullivan conceded that the installation of the “engineered flooring,” which was part of each of the estimates “had nothing to do with the drainage problem.”   In his second estimate, he noted that the groundwater “is heavy in this area.”   Sullivan stated that during his visit to the property he saw no water but did notice unspecified “remnants” of water.   He did not recollect any leakage into the closet and could not recall seeing any specific evidence of water seepage.   He saw no tarp around the stovepipe, an omission which, in his opinion could allow rain and snow to infiltrate the basement through the pipe, noting that the ideal solution was to put a steel cap over the concrete box, which connects the inside stove pipe to the outside chimney pipe.   In light of the court's decision on liability, it is not necessary to address the pros and cons of Sullivan's estimate.

III. APPLICABLE LAW

The court will address both counts of the plaintiffs' complaint together as there are similarities in what is required to constitute a cause of action for each.   There are also significant differences.   Recently, the Appellate Court, citing Sec. 552 of the Restatement (Second) of Torts (1977), instructed as to the “governing principles” for a cause of action based upon a claim of negligent misrepresentation:  “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact, (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  (Internal quotation marks omitted.   Internal citations omitted.   Emphasis added.)   Coppola Construction Company, Inc. v. Hoffman Enterprises Limited Partnership et al.  (AC 33102, officially released March 13, 2012).  “A vendor of residential property is liable to a purchaser for negligent misrepresentation of the condition of the property to that purchaser, if the purchaser would not otherwise have agreed to the terms of the sale.”  Giametti v. Inspections, Inc., 76 Conn.App. 352, 363 (2003).

Intentional misrepresentation (Second Count) is the equivalent of a cause of action for fraud and requires that the seller knowingly misrepresent facts of which she/he has actual knowledge.  Dockter v. Slowik, 91 Conn.App. 448, 457, cert. denied, 276 Conn. 919 (2005).  “Our Supreme Court repeatedly has held that the essential elements of an action in common law fraud are that:  (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;  and the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance ․ In contrast to a negligent representation, [a] fraudulent representation ․ is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it.”  (Citations omitted.   Internal quotation marks omitted.   Emphasis added.)  Strum v. Harb Development, LLC, 298 Conn. 124, 142 (2010).  “This is so because fraudulent misrepresentation is an intentional tort.”  Kramer v. Petisi, 285 Conn. 674, 684 (2008).  “All of the [elements] must be found to exist;  and the absence of any one of them is fatal to [the plaintiffs'] recovery.”  Harold Cohn & Co. v. Harco International, 72 Conn.App. 43, 51, cert. denied, 262 Conn. 903 (2002).   Most significantly, the plaintiffs must prove the existence of the first three elements, i.e., (false representation of statement of fact, known to be untrue, made to induce the plaintiffs to act), by a higher standard, that of clear, precise and unequivocal or convincing evidence.  McCann Real Equities Series XXII, LLC v. McDermott Chevrolet, 93 Conn.App. 486, 518, cert. denied, 277 Conn. 928 (2006).”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.”  Id., at Page 518.

IV. CLAIMS OF THE PARTIES

The plaintiffs, citing, inter alia, McDermott Chevrolet and Dockter, supra, assert that they have proved not only the essential elements of negligent misrepresentation, but those elements necessary to prove that they were defrauded by the defendant.   They claim that had they been made aware of the “severe and constant” infiltration of water into the basement, they would not have purchased the house.   Without any reference to the higher standard of proof required for a claim based upon fraud, they assert that the evidence shows that they were “repeatedly assured” by the defendant that no water had entered the basement.   See Plaintiff's Memorandum (# 109), page 6. As to the negligent misrepresentation claim, which requires the lesser standard of fair preponderance of the evidence, they point to the defendant's explanation of the drainage work, claiming that her failure to mention previous water infiltrations during that discussion, was a breach of her duty to, as it were, tell it all.   Finally, as to each of the counts, the plaintiffs claim that they have met their burden to prove the common elements of justifiable reliance and proximate cause.   They seek a monetary award based upon Sullivan's second estimate.

The defendant counters that the facts adduced at the trial bear little resemblance to the allegations in the plaintiffs' complaint that the basement water infiltration is “severe and constant,” asserting that if such allegation was true, the plaintiffs would have long since authorized the recommended remedial work, replaced the carpet and would have ceased to use the basement which they continue to enjoy regularly.   Moreover, the defendant points out that the plaintiffs have made no claim that mold has formed in the basement which would have been the inevitable consequence of seven years of “constant and severe” flooding of the basement.   The defendant asserts that during the inspection the plaintiffs were informed of the lot's drainage problems, that the condition and remedial attempts were disclosed and referred to in several portions of the inspection report and that the plaintiffs actually viewed the tarp and heard an explanation of the work performed on the stove pipe by the defendant's husband—all of this before they consummated the purchase.   The defendant posits, citing Forman v. Gaulin, Judicial District of Fairfield at Bridgeport, Docket # CV08–5013603, (September 29, 2011, Gilardi, J.):  “If the defendant intended to deceive and perpetrate a fraud upon the plaintiffs, why not remove the tarp and omit any reference to the drainage condition?”   See Defendant's Memorandum (# 110), page 4. The defendant urges the court not to give any credence to the plaintiffs' claim that they would not have bought the house if the past incursions of water into the basement were fully disclosed by the defendant, referring to the numerous disclosures and cautions contained in Schaeffer's report, which, according to the defendant, should negate any credible claim of reliance.

V. DISCUSSION

As gleaned from the citations referred to in Part III of this memorandum, aside from the standard of proof, the major difference between what is required to prove a claim of negligent misrepresentation and what is required to prove fraudulent misrepresentation, is that the latter requires actual knowledge by the defendant that the statement of fact was untrue, while the former requires only that the defendant failed to exercise due care in obtaining or in communicating the false information to the plaintiffs.   The major similarities between the two causes of action is that each requires that the plaintiffs prove that they reasonably and justifiably relied upon the false representation of fact allegedly made by the defendant and it was that reliance which proximately caused the monetary damages claimed by them.

With regard to the crucial element of detrimental reliance, whether the claim of fraud requires the higher standard of proof or the lesser fair preponderance of the evidence standard is of no importance, as the court finds that the plaintiffs have failed to sustain their burden of proof under either standard.   The evidence, even if viewed in the light most favorable to the plaintiffs' does not come close to a finding that, whatever the frequency and amount of water infiltration into the plaintiffs' basement, it was not constant and it was not severe as alleged in the plaintiffs' complaint.   In this regard, the court noted the plaintiff husband's description of the extent of water infiltration into his basement in the fall of 2011, during Hurricane Irene.   The plaintiff testified there was “some seepage,” while newspaper accounts and TV coverage at the time described widespread basement flooding throughout the state.   The plaintiff husband testified that they get water through the stove pipe two or three times a year.   The photographs submitted by the plaintiffs do not depict a substantial accumulation of water on the basement floor.   As the defendant correctly points out, if the basement flooding were as they allege, the plaintiffs would have long since remediated the problem in the manner proposed by Sullivan in early 2005, as the inevitable formation of mold would have precluded normal use of their finished basement.   There was no evidence offered by the plaintiffs of either mold formation or of the cessation of their use of the basement for utility and recreation purposes.

Moreover, the plaintiffs' claim that they relied on the defendant's verbal representation and a similar written representation in the disclosure statement that she never experienced a drop of water in the basement to such an extent that they would not have completed the purchase had the defendant made a full and complete disclosure of the water infiltration problem, is simply not credible.   The court arrives at this conclusion not only in light of the plaintiffs' continued use of the basement but considering the substantial visible evidence, before they completed the purchase, that provided reasonable cautionary notice that they might experience some water entry into the basement after the closing.   Most notably, prior to making the purchase, the plaintiffs not only saw the tarp and bungee cord covering over the exterior stovepipe, but were provided with an explanation from the defendant's husband that the purpose of the work was “to keep the rainwater out!”   Despite this clear visible warning that the removal of the tarp could result in water coming in through the stovepipe, the plaintiffs opted to dismantle what the defendant's husband had done and proceeded to replace the wood stove with a pellet stove that required a pipe of a different configuration.   Sullivan, the re-mediation contractor, testified that the lack of the tarp around the stovepipe could cause rain and snow to infiltrate the basement through the stovepipe, an occurrence, which according to the plaintiffs, they continue to experience.   During his inspection, Schaeffer observed some water stains on the floor of the basement.   The defendant explained that they were caused by a malfunction in the hot water heater, which occurred shortly after they took possession of the dwelling.   They installed a new hot water heater after that event.   The installation by the defendant's husband of a twelve-inch drainage pipe to deflect significant surface water into the town's drainage system was disclosed in writing and in conversation by the defendant during the house inspection.   It was obvious that the house was located below a mountain.   Schaeffer expressed concern in his report as to the grading of both the left side yard and the rear yard and recommended the institution of gutters while warning that a chief cause of water infiltration is the lack of proper leaders and gutters.   In that report Schaeffer noted his concern as to the pitch of the driveway and noted the visible ice heaves thereon.   The buy-sell agreement itself contained language not only recommending that the prospective buyers retain a qualified home inspector but that they place reliance on what they observed and on the inspector's report, rather than any statements or representations made by the sellers.

Those property conditions that the plaintiffs observed and others that were referred to in Schaeffer's report and those occurrences disclosed to them orally and in writing by the defendant and/or her then husband provided the plaintiffs with sufficient cautionary notice that they may experience the infiltration of water into their basement.   Any attempts by the defendant to negate what the plaintiffs observed, heard and read, such as the claim as alleged by the plaintiffs that the defendant never experienced a drop of water, whether that statement was innocent or intentional, should have fallen upon deaf ears.   The tarp was visible.   The ditch containing the twelve-inch pipe was visible.   The plaintiffs were told that the purpose of the tarp was to keep the water out.   Thus, the plaintiffs as buyers were on notice of possible water infiltration despite any representations to the contrary made in the defendant's disclosure.   In light of the information furnished to the plaintiffs by other more reliable sources and under all of the relevant circumstances described herein, this court finds that it was unreasonable and unjustified for the plaintiffs to rely on any of the defendant's written or oral statements to the contrary.   They have not met their burden to prove the element of detrimental reliance, which is a key element in each of the causes of action pursued by them.

As to each count in the plaintiffs' complaint, this court finds the issues in favor of the defendant as against the plaintiffs.   Judgment may enter accordingly without the assessment of costs to either party.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. At the outset it should be noted that the defendant did not appear at trial, although her attorney did participate and called two witnesses, including her former husband with whom she resided during the entire time that she was the sole owner of the subject house.   According to her attorney, she now resides in Arizona and was unable to get sufficient time off to attend the trial.   This court harbors no adverse inference from the defendant's lack of participation in the trial..  FN1. At the outset it should be noted that the defendant did not appear at trial, although her attorney did participate and called two witnesses, including her former husband with whom she resided during the entire time that she was the sole owner of the subject house.   According to her attorney, she now resides in Arizona and was unable to get sufficient time off to attend the trial.   This court harbors no adverse inference from the defendant's lack of participation in the trial.

FN2. During the trial the plaintiffs conceded that the accumulation of water in the garage is not an issue for the court's consideration and that they are no longer making any claims relative thereto..  FN2. During the trial the plaintiffs conceded that the accumulation of water in the garage is not an issue for the court's consideration and that they are no longer making any claims relative thereto.

FN3. Apparently, Kelly Foster, the plaintiff wife, was in the courtroom during the trial, however, neither party chose to call her as a witness..  FN3. Apparently, Kelly Foster, the plaintiff wife, was in the courtroom during the trial, however, neither party chose to call her as a witness.

FN4. Subparagraph (a) of General Statutes Section 20–327b, known as the Property Condition Disclosure Act, provides, in relevant part:  [E]ach person who offers residential property in the state for sale ․ shall provide a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser's execution of any ․ contract to purchase ․ A photocopy ․ or other exact reproduction or duplicate of the written residential condition report containing the signatures of both seller and purchaser, shall be attached to any agreement to purchase the property..  FN4. Subparagraph (a) of General Statutes Section 20–327b, known as the Property Condition Disclosure Act, provides, in relevant part:  [E]ach person who offers residential property in the state for sale ․ shall provide a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser's execution of any ․ contract to purchase ․ A photocopy ․ or other exact reproduction or duplicate of the written residential condition report containing the signatures of both seller and purchaser, shall be attached to any agreement to purchase the property.

FN5. Exhibit 4a shows a metal pail and a rag stuffed under the stove pipe which enters the basement from the exterior of the dwelling.   Exhibit 4b reveals a mop with a small accumulation of water on the floor.   Exhibits 4c and 4d depict closer views of the two photographs previously referred to..  FN5. Exhibit 4a shows a metal pail and a rag stuffed under the stove pipe which enters the basement from the exterior of the dwelling.   Exhibit 4b reveals a mop with a small accumulation of water on the floor.   Exhibits 4c and 4d depict closer views of the two photographs previously referred to.

Trombley, Wilson J., J.