Care Goodstal–Spinks v. David G. Provolo et al. (2014)

MEMORANDUM OF DECISION

The plaintiff, Care Goodstal–Spinks, has filed an amended one-count complaint against the defendants David Provolo (defendant or Provolo) and Melanie Yulo in connection with the purchase of a residence by the plaintiff from the defendants.   The complaint alleges that the plaintiff purchased the defendants' property at 57 White Birch Drive in Guilford, Connecticut on February 9, 2009 for $382,500, that in making said purchase the plaintiff relied on two residential property condition disclosure reports provided by the defendants and one inspection report prepared by National Property Inspection as of August 12, 2008, as well as her own visual inspection.

The complaint alleges that prior to the house being shown to the plaintiff the defendants caused plywood panels to be installed around the basement to conceal large areas of defects and to preclude discovery of those defects by the plaintiff.   After taking possession of the property the plaintiff claims to have discovered a substantial dip in the master bathroom subfloor which had been filled in and concealed by new slate flooring and vanity cabinetry.   It is also alleged that prior to the house being shown to the plaintiff, the defendants caused new flooring to be placed in the entranceway and living room which concealed large areas of serious structural termite damage and precluded discovery of that damage by the plaintiff.   The plaintiff also alleges that the defendants prevented inspection of the garage floor by leaving large amounts of clothing and other belongings on the floor, thereby preventing the plaintiff from discovering that the entire garage floor was rubble and required replacement.   Finally the plaintiff alleges that she would not have purchased the property if the aforesaid defects had been disclosed, and that she has spent substantial sums of money to remedy said defects and will be obliged to expand further sums in the future.

By way of their answer to the complaint the defendants admit that the plaintiff purchased the property for $382,500 on February 9, 2009, and that they provided her with an inspection report prepared by National Property Inspection on August 12, 2008.   All other allegations are either denied or it is claimed that the defendants lack insufficient information and leave the plaintiff to her proof.

This court heard this case as a bench trial on July 30 and 31, and August 1, 2, 5, and 6, 2013.   The plaintiff offered as witnesses the defendant David Provolo, a painter George Frohlich, Ron Griffith who prepared the inspection report by National Property Inspections, the plaintiff's real estate agent Andrew Stephens, the plaintiff's husband Bryan Spinks, the general manager of a wood flooring company George Olt, an electrician Patrick Viellette, a general remodeler Gregory Lehman, the plaintiff Care Goodstal–Spinks, the plaintiff's real estate attorney Philip Parks, and a home improvement contractor John Oboyski.   The defendant cross examined the plaintiff's witnesses and offered direct testimony from the plaintiff and the defendant David Provolo.   Based on the evidence offered and the reasonable inferences to be drawn therefrom, the court finds the following facts and reaches the following conclusions.

While the amended complaint does not allege any specific theories of liability, the allegations appear to claim liability based on fraudulent misrepresentations and negligent misrepresentation.   Fraudulent misrepresentation consists of the following:  “A cause of action for intentional misrepresentation is essentially a claim of fraud ․ 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 (3) the other party relied on the statement to his detriment ․ Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal ․ The determination of what acts constitute fraud is a question of fact ․” (Citation omitted;  internal quotation marks omitted.)  Reid v. Landsberger, 123 Conn.App. 260, 281, 1 A.3d 1149 (2010).

Negligent misrepresentation has been defined many times by the appellate courts.  “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 ․ The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977):  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;  emphasis added;  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);  Parker v. Shaker Real Estate, Inc., 47 Conn.App. 489, 494–95, 705 A.2d 210 (1998).   A vendor of residential property is liable to a purchaser for a 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.   See Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 347, 232 A.2d 307 (1967);  Warman v. Delaney, 148 Conn. 469, 473–74, 172 A.2d 188 (1961);  Foley v. Huntington Co., 42 Conn.App. 712, 721–22, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation.   See Citino v. Redevelopment Agency, 51 Conn.App. 262, 273–75, 721 A.2d 1197 (1998);  see also Maturo v. Gerard, 196 Conn. 584, 589, 494 A.2d 1199 (1985).  “Whether evidence supports a claim of ․ negligent misrepresentation is a question of fact.”  (Internal quotation marks omitted.)  Mips v. Becon, Inc., 70 Conn.App. 556, 558, 799 A.2d 1093 (2002).  Giametti v. Inspections, Inc., 76 Conn.App. 352 (2003).

The court finds that the plaintiff has failed to prove that the defendants made either fraudulent or negligent misrepresentations, or that the plaintiff relied on such alleged misrepresentations.

The defendants, David Provolo and his wife Melanie Yulo, had lived in the residential property in Guilford known as 57 Birch Drive, for approximately eleven years in the Spring of 2008 when they decided to sell their home.   The home was then approximately 80 years old.   The defendants had prepared a Residential Property Condition Disclosure Report (Exhibit 17) on July 8, 2008.   They also had the property examined by a licensed home inspector, Ron Griffith, employed by National Property Inspection, on August 12, 2008 and received a 24–page report (Exhibit 19) from Mr. Griffith shortly after the inspection.   After receipt of Exhibit 19 the defendants prepared another Residential Disclosure Report (Exhibit 18) on December 26, 2008 which reflected the property conditions as found by Mr. Griffith in Exhibit 19.

The plaintiff and her husband Brian Spinks had found the property through their real estate agent Ron Stephens and had viewed it online.   They both visited the property on December 19, 2008 and the plaintiff signed a contract (Exhibit 1) to purchase the property December 13, 2008.   Before signing Exhibit 1 the plaintiff and her husband received copies of the July 8, 2008 report (Exhibit 17) and the August 12, 2008 report by Mr. Griffith (Exhibit 19).

The examination of the property and the report by Mr. Griffith (Exhibit 19) detailing the results of his examination of the property was suggested to the defendants by their real estate agent and was the same report that Mr. Griffith would do if he were retained by the potential buyers of a residence.   It was 24 pages in length and in considerably more detail than either Exhibit 17 or 18, the two residential disclosure forms prepared by the defendants.   The Griffith report included a five-page summary of conditions that were defective or marginal on the property.   The defendants were under no obligation to give the Griffith report to the plaintiff but did so to convey to the plaintiff a complete picture of the 80–year–old residence.   It was the contents of the Griffith report and the examination by the seven inspectors hired by the plaintiff that resulted in a credit of $6,941 to the plaintiff at the closing.  (Exhibits V and W.)

On December 29, 2008 the plaintiff's husband was present at the property when seven tradespeople retained by the plaintiff examined the property.   The plaintiff and the defendant were not present on that day.   One of the primary complaints by the plaintiff relates to the installation of several wooden panels around the basement by Mr. Provolo.   The basement allegedly had defects and it is claimed that the panels prevented discovery of the defects by the plaintiff.   Approximately in May 2008 before putting the property on the market Mr. Provolo had installed three or four wooden panels that were intended to prevent small animals from getting under the house, and to improve the appearance of the property.   These panels were installed with screws so that they could easily be removed if one wished to get in that area under a portion of the house.   When Mr. Griffith made his inspection in August 2008 he did not remove the panels and his report states that this area under the house was not inspected.   During the inspection by the various tradespeople on December 29, 2008, one of them inquired about removing the panels installed by Mr. Provolo and was told nothing could be removed without the owner's permission.   Thereafter no such request was communicated to Mr. Provolo who testified that he would have allowed the removal of the panels if it had been requested.   There is no documentation of any complaints by the plaintiff or her husband about this alleged lack of access.   In fact the plaintiff sent her real estate agent a fax on January 3, 2009 stating that she was “so pleased” with the inspections.   There is no credible evidence of any dissatisfaction with the access provided on the property until sometime after the closing on February 9, 2009.

The plaintiff has failed to prove that either defendant had any knowledge about the conditions found by Mr. Oboyski when he removed the panels installed by Mr. Provolo.   She has failed to prove that either defendant made false representations about the existence of any defective conditions or that they knew that such conditions existed.   The panels had been installed by Mr. Provolo with screws so that they could be easily removed if an inspector wished to do so.   Neither Mr. Griffith or any of the various tradespeople who inspected the property on December 29, 2008 sought to obtain permission from the defendants to remove the panels, and the plaintiff obviously agreed with that conclusion.

Other specific complaints made by the plaintiff in her amended complaint are that there was a substantial dip in the master bathroom subfloor which had been filled in and concealed by new slate flooring and vanity cabinetry.   In addition it is claimed that the defendants caused new flooring to be placed in the entranceway and living room, thereby concealing large areas of serious structural termite damage and precluding discovery of that damage by the plaintiff or any property inspector.

The defendant Mr. Provolo testified in detail about the work done in these areas, some of which was done several years earlier by contractors and some of which was done by him personally several months before putting the property on the market.   At no time were any of the alleged defective conditions observed or called to his attention by anyone.

Mr. Provolo testified that several months before listing the property for sale he had installed laminated wood flooring, also known as Pergo flooring, in a small area by the front door.   He also testified about his renovation of the bathroom on the main level several years before listing the property, and his renovation of the master bedroom in 2008 in anticipation of selling the property.   Throughout he never observed any structural defects or leaking or termite damage problems nor did any contractor ever call such conditions to his attention.

Claims of fraudulent and negligent misrepresentations both require proof that the claimant relied on the misrepresentation to her detriment.   In this case the plaintiff had the Griffith report (Exhibit 19) when she entered into the contract to buy the property and at the time of the closing, and the report refers to the areas in the interior of the property about which she now complains.   The contents of the Griffith report were adequate notice to her of the conditions existing on the property which negates any claim that she relied on the failure to disclose those conditions on the two disclosure reports.

The plaintiff claims that the defendants covered the garage floor with various items so as to prevent the plaintiff from observing the deteriorated floor.   There is a question about whether a detached garage is included in a “residence” since it is not mentioned on the state prescribed disclosure forms.   In any event the defendant conceded that the floor of the garage was in bad shape and Mr. Griffith's report states that these were numerous defective areas in the garage.   The report notes that there was evidence of termite damage around the garage door and that he suspects that the floor will need to be replaced.   The plaintiff had this report and chose to ignore the comments by Mr. Griffith regarding the concedingly defective conditions in the garage.   The plaintiff has failed to prove any reliance on the conduct of the defendants concerning the garage, or that the defendants made any fraudulent or negligent misrepresentations about the condition of the garage.

A judgment may enter in favor of the defendants.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.