Moorman v. Bremm
| Decision Date | 05 October 2022 |
| Docket Number | CIVIL 3:21-CV-1300(OAW) |
| Parties | GEMMA MOORMAN and JEFFREY MOORMAN, Plaintiffs, v. JAMES BREMM and JASON KONSCHNIK, Defendants. |
| Court | U.S. District Court — District of Connecticut |
RULING ON DEFENDANTS' MOTION TO DISMISS
Gemma and Jeffrey Moorman (“Mrs. Moorman,” “Mr Moorman” and collectively “the Moormans” or “Plaintiffs”) bring this action against James Bremm (“Mr. Bremm”) and Jason Konschnik (“Mr. Konschnik”) (collectively “Defendants”), alleging that Defendants are liable for fraud, breach of contract, and fraudulent concealment, arising from misrepresentations concerning property located at 896 Cedar Road in Southport, Connecticut (“the Property”). Plaintiffs additionally assert claims for defamation and abuse of process against Defendants' counsel. Plaintiffs invoke this court's jurisdiction pursuant to 28 U.S.C. § 1332.[1] Defendants have filed a Motion to Dismiss Plaintiffs' claims (ECF No 28). Plaintiffs have filed a Motion to Join Additional Party (ECF No. 59) and the parties have filed several discovery-related motions.
For the reasons stated herein, the court GRANTS Defendants' motion DENIES Plaintiffs' motion, and finds the remaining motions MOOT.
In 2017, Defendants purchased the Property from Nils and Joan Sterner (“the Sterners”) and “undertook a complete renovation.” Second Amended Complaint (“SAC”), ECF No. 25 at 3 ¶ 1. The Sterners made Defendants aware of drainage problems on the Property and provided Defendants with documents in support of their mitigation efforts with respect to those issues. Id. at ¶ 2.
On September 25, 2018, six to eight inches of rain fell in the vicinity of the Property. Id. at ¶ 4. A parcel known as Hull's Farm Estate (“Hull's Farm”) abuts the north and west portions of, and is at a “considerably higher” elevation than, the Property. Id. at ¶ 5. On that date, runoff from Hull's Farm “washed grass, soil, fertilizer and other organic debris,” onto the Property, causing contamination of the in-ground swimming pool thereon. Id. at ¶ 6. Defendants hired Marquee Pools and Service (“Marquee”) to clean the pool. Id. at ¶ 7. Marquee performed service on three occasions, in order to complete the cleaning. Id. at ¶¶ 8-10. Marquee's invoices marked “PAID” were billed to Defendants. Id. at 11. While Defendants resided at the Property, rain runoff from an abutting property washed organic debris into the in-ground pool, caused the Property's sump pumps to activate. Id. at 2. Defendants “could see water flowing from the sump pumps and pooling in the cul de sac.” Id. Defendants “engaged Marquee Pools and Service to clean the pool in three separate service visits over the course of one week.” Id.
Defendants resided at the Property, Id. at ¶ 3, until, in the latter part of 2018, or early 2019, they made a decision to sell it. Id. at 13.
On February 6, 2019, Defendants executed a “Residential Property Condition Disclosure Report” (“Disclosure Report”), in compliance with Conn. Gen. Stat. [§] 20237b. Id. at ¶¶ 14-15. In the Disclosure Report, Defendants answered “no” to a question regarding the existence of “water drainage problems” on the Property. Id. at ¶ 16. The Disclosure Report “was incorporated into the Fairfield County Bar Association Residential Real Estate Sales Agreement ("Agreement") for the sale of the Subject Property by the Defendants to the Plaintiff[, Mrs. Moorman,] as a rider.” Id. ¶ 17.[2]
On June 2, 2019, Defendants signed the Agreement regarding the sale of the Property to Mrs. Moorman. Id. at ¶ 18. During a “walk through” of the Property, Bremm denied that the sump pumps had ever been triggered, in response to Mr. Moorman's inquiry. Id. at ¶ 19. Defendants failed to give Plaintiffs the Disclosure Report and, instead, left it and other documents in a kitchen cabinet. Id. at ¶ 22. The additional documents included an April 2015 contract for waterproofing services between Quality Dry Basements (“Quality”) and the Sterners. Id. at ¶ 23.
Despite the Agreement's stated requirements regarding misrepresentations and notice, Id. at ¶¶ 24-26, no notice was sent to Plaintiffs with respect to water drainage problems. Id. at ¶ 27. In reliance on the Disclosure Report and lack of other notice, Plaintiffs decided to purchase the Property. Id. at ¶¶ 28.
On August 1, 2019, Defendants conveyed title to the property to Gemma M. Moorman, Trustee of the Thorin Revocable Living Trust (“the Trust”). Warranty Deed, ECF No. 28-1, Def. Ex. A at 10.[3]
On July 9, 2021, four inches of rain fell in the area of the Property and resulted in runoff effecting the Property's pool, for which Plaintiff's engaged MJ Pools. Id. at ¶¶ 3031.
From September 1 through September 2, 2021, a hurricane in the area of the Property deposited six inches of rain, resulting in the aforementioned runoff into the pool and, additionally, causing the grout in the pool apron to erode. Id. at ¶ 32. In early October, Plaintiffs hired Rizzo Pool and Masonry (“Rizzo”) to remedy the damage. Id. at ¶ 33.
Upon their investigation, Plaintiffs discovered, through the statements of two neighbors, Id. at ¶ 35, and Marquee, Id. at ¶¶ 36-37, the 2018 remediation for runoff issues on the Property.
The Second Amended Complaint states that Defendants knew or should have known that drainage problems did exist on the Property. Id. at 2. In particular, “when there is heavy rainfall . . . runoff from an abutting property would wash soil, grass, fertilizer and other organic debris into the in-ground swimming pool on the Subject Property and contaminate it.” Id. In addition, the runoff would “inundate the foundation of the house and eventually weaken it and trigger the sump pumps that would evacuate water,” resulting in damage to the Property's driveway, a neighbor's property and pavement on the adjacent cul-de-sac. Id. Plaintiffs state that they “are now saddled with mitigation costs and the obligation to disclose this history to any prospective buyer,” diminishing the Property's value. Id.
In a November 19, 2021 response to Plaintiff's Motion to Compel, Defendants' counsel made a statement regarding Mr. Moorman that counsel had, from prior interactions, “found him to lack candor and frequently made untrue statements of fact both in his writings and in court." Id. at 8-9 ¶ 65. This statement provides the basis for Plaintiffs' claims for abuse of process and defamation, in Counts Four and Five. Id. at 89.
On September 30, 2021, Plaintiffs filed the original complaint in this case. ECF No. 1. On October 8, 2021, the court concluded that Plaintiffs failed to state a sufficient basis for the court's diversity jurisdiction, based on uncertainty surrounding the citizenship of Defendant, Wyndam LLC. ECF No. 9. The court directed Plaintiffs to file an amended complaint to remedy this issue, on or before October 22, 2021. On October 19, 2021, Plaintiffs filed a notice of withdrawal of their claims against Wyndam LLC, and subsequently filed an Amended Complaint. ECF Nos. 11 and 17. On December 16, 2021, the court granted Plaintiffs leave to file a Second Amended Complaint, ECF No. 23, and Plaintiffs filed their amendment on December 29, 2021. ECF No. 25.
On January 5, 2022, Defendants filed the within Motion to Dismiss. ECF No. 28.
Plaintiffs filed subsequent motions to amend the SAC, ECF Nos. 29 and 33, however, the court denied leave based on Plaintiffs' failure to provide sufficient cause for further amendment to the pleadings. ECF No. 63.
On January 25, 2022, Plaintiffs filed a motion to disqualify Defendants' counsel. ECF No. 30. The court subsequently denied the motion. ECF No. 64 at 2 ().[4]
In response to Defendants' arguments with respect to standing, on July 25, 2022, Plaintiffs filed a Motion to Join an Additional Party. ECF No. 59.[5]
The existence of subject matter jurisdiction is a threshold determination and dismissal under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). A defendant may move to dismiss pursuant to Rule 12(b)(1), due to a plaintiff's lack of constitutional standing. Fed.R.Civ.P. 12(b)(1); W.R. Huff Asset Mgmt. Co., LLC v. DeLoitte & Touche LLP, 549 F.3d 100, 104 (2008). Once subject matter jurisdiction is challenged, “a plaintiff . . . has the burden of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113.
“A Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial or fact-based.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). “When the Rule 12(b)(1) motion is facial, i.e., based solely on the allegations of the complaint or the complaint and exhibits attached to it . . . the plaintiff has no evidentiary burden.” Id. However, a defendant asserting a fact-based challenge does so by “proffering evidence beyond the Pleading.” Id. at 57. Under those circumstances, the plaintiffs must “come forward with evidence of their own to controvert that presented by the defendant ‘if the affidavits submitted on a 12(b)(1) motion . . . reveal the existence of factual problems' in the assertion of jurisdiction.” Id. (citing Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)).
To avoid dismissal under Rule 12(b)(6), a plaintiff must...
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