Heller v. D.W. Fish Realty Co.

• Decision Date: 14 February 2006
• Docket Number: No. 25624, 26102.,25624, 26102.
• Court: Connecticut Court of Appeals
• Parties: Christine HELLER et al. v. D.W. FISH REALTY COMPANY et al.

890 A.2d 113

93 Conn.App. 727

Christine HELLER et al. v. D.W. FISH REALTY COMPANY et al.

No. 25624, 26102.

Appellate Court of Connecticut.

Argued October 24, 2005.

Officially released February 14, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Daniel Jonah Krisch, Hartford, with whom was Michael S. Taylor and, on the brief, Brendon P. Levesque, for the appellants-appellees (defendants).

Derek V. Oatis, Manchester, for the appellees-appellants (plaintiffs).

LAVERY, C. J., and SCHALLER and WEST, Js.^*

WEST, J.

The defendants, D.W. Fish Realty Company (D.W.Fish) and JoAnn Marozzi, appeal from the judgment of the trial court rendered following a jury verdict in favor of the plaintiffs, Christine Heller and Richard Heller. The plaintiffs also appeal, challenging the court's denial of their motion for attorney's fees. In the first appeal, AC 25624, the defendants claim that the court improperly denied their motion to set aside the verdict. In the second appeal, AC 26102, the plaintiffs claim that the court improperly denied their motion for attorney's fees. We affirm the judgment of the trial court as to the motion to set aside the verdict and reverse the judgment as to the motion for attorney's fees.

The jury reasonably could have found the following facts. The plaintiffs sought to purchase their first home and contacted D.W. Fish, a real estate agency. Marozzi, an agent with D.W. Fish, showed the plaintiffs a home at 18 French Road in Bolton. During their visit to the home, the plaintiffs and Marozzi saw a well in the backyard. Marozzi told the plaintiffs that she would ask the listing agent about the well. The plaintiffs and Marozzi then returned to D.W. Fish's office, where the plaintiffs signed a contract to purchase the home. The "well inspection contingency" rider to the contract provided in relevant part that the "[c]ontract is contingent upon a satisfactory test of the well system to be performed by a competent well inspector at [b]uyer's expense." Although there was no written buyer agency contract between the plaintiffs and the defendants, Marozzi told the plaintiffs that she would arrange all necessary inspections of the home, including a well inspection. She later assured the plaintiffs that the well functioned properly. The plaintiffs then closed the sale and moved into the home.

Approximately seven weeks later, the plaintiffs noticed a problem with their water quality and discovered that rodents had entered the well and died there. The plaintiffs replaced the well, known as a dug well, with a drilled well. They later learned that the inspector whom Marozzi had hired performed a water test, but was not qualified to perform a well inspection, which would have revealed holes through which rodents could enter the well. The plaintiffs then commenced this action, alleging that the defendants had breached their contract with the plaintiffs, acted negligently and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

After a trial, the jury returned a verdict in favor of the plaintiffs on all counts and awarded them $18,500 in economic damages and $25,000 in noneconomic damages. The court denied the defendants' motion to set aside the verdict and rendered judgment in accordance with the verdict. The court subsequently denied the plaintiffs' motion for attorney's fees. These appeals followed.

I

In AC 25624, the defendants claim that the court should have granted their motion to set aside the verdict. We disagree.

"[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict ... [is] the abuse of discretion standard .... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.... We do not ... determine whether a conclusion different from the one reached could have been reached.... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted." (Internal quotation marks omitted.) Cousins v. Nelson, 87 Conn.App. 611, 624-25, 866 A.2d 620 (2005).

In support of their claim that the court should have granted their motion to set aside the verdict, the defendants argue that they (1) had no contractual obligation to inspect the well, (2) were not negligent because they had no duty to inspect the well and that their failure to inspect the well did not cause the plaintiffs' damages, and (3) did not violate CUTPA. We disagree with all of those arguments.

A

The defendants first argue that they did not have a contractual obligation to inspect the well. That argument merits little discussion. "The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence." (Internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 572, 845 A.2d 417 (2004). The evidence indicated that Marozzi promised to arrange a well inspection and failed to do so. Although no written buyer agency contract existed, the jury reasonably could have concluded, on the basis of Marozzi's oral promise, that the defendants had a contractual obligation to inspect the well and breached that obligation.

B

The defendants next argue that they were not negligent in failing to inspect the well. We begin by addressing whether the defendants had a duty to inspect the well. "The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis." Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005). As to the first prong, "[d]uty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.... The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... [In other words], would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Id., at 115, 869 A.2d 179. As to the second prong, "[i]n considering whether public policy suggests the imposition of a duty, we ... consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Id., at 118, 869 A.2d 179.

We reject the defendants' argument that they had no duty to inspect the well. Not only was Marozzi aware of the presence of the well, she told the plaintiffs that she would ask the listing agent about it and arrange an inspection of it pursuant to the contract of sale. Marozzi later told the plaintiffs that the well functioned properly, even though the inspector she had hired was not qualified to inspect wells. In the absence of a written buyer agency contract, the jury reasonably could have determined that Marozzi orally had promised to order a proper well inspection. Those circumstances lead us to determine that it was foreseeable to Marozzi that harm could result from a failure to inspect the well properly. The defendants argue that Marozzi did not know that a well inspection is different from the water test that was performed, but her lack of knowledge regarding the specific nature of a well inspection does not affect the foreseeability of the harm.

The factors relating to public policy also support the imposition of a duty on the defendants. In particular, the parties expected that Marozzi would arrange a well inspection because she promised the plaintiffs that she would do so. Furthermore, because it is desirable to promote home ownership, public policy favors requiring real estate agents to fulfill the promises they make to buyers. We do not believe that imposing a duty on the defendants to inspect the well in the present case will increase litigation because the facts clearly indicate that Marozzi told the plaintiffs that she would take the responsibility of arranging a well inspection. In view of the distinctive facts of the present case, we find it unnecessary to consider the decisions of other jurisdictions. In sum, our determination of foreseeability and public policy analysis lead us to reject the defendants'...