Onofrio v. Mineri

• Decision Date: 21 September 2021
• Docket Number: AC 43158
• Citation: 207 Conn.App. 630,263 A.3d 857
• Parties: Daniel ONOFRIO et al. v. Joseph MINERI et al.
• Court: Connecticut Court of Appeals

207 Conn.App. 630

263 A.3d 857

Daniel ONOFRIO et al.

v.Joseph MINERI et al.

AC 43158

Appellate Court of Connecticut.

Argued November 30, 2020

Officially released September 21, 2021

Scott Jackson, for the appellants (named defendant et al.).

Thomas J. Dembinski, Hamden, CT, for the appellees (plaintiffs).

Moll, Alexander and Suarez, Js.

MOLL, J.

In this new home construction dispute, the defendants Joseph Mineri (Mineri) and Timberwood Homes, LLC (Timberwood), appeal from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiffs, Daniel Onofrio and Elsie Onofrio, against (1) Mineri and Timberwood on the plaintiffs’ claim pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (2) Timberwood on the plaintiffs’ claim pursuant to the New Home Warranties Act (warranties act), General Statutes § 47-116 et seq.¹ We affirm in part and reverse in part the judgment of the trial court.

The trial court found the following facts that are relevant to our resolution of this appeal. "The named defendant ... Mineri, is one of three brothers who, through their [businesses], work together in the contracting business." Mineri is a fifty-fifty owner of Timberwood with his brother, Louis. "Timberwood is in the business of building new homes. [Mineri] and one Alan Genn (not a party to this action) are fifty-fifty owners of G & M [Properties, LLC (G & M)]. G & M buys and sells real property. Christopher [Mineri (Christopher)] (also not a party) owns all or part of Mineri Excavating ...." Mineri testified at trial that he is actively involved in the operation of all three businesses.

The subject property is located at 6 Pine View Drive in North Branford (property). "A previous house at this location was destroyed by fire, leaving a foundation. [Mineri], through one or more of his [businesses] ... purchased the property with the intention of building a new home on the existing foundation and ‘flipping’ it. Timberwood proceeded to build the home.

"The home was built over the existing foundation. Timberwood also built an adjacent garage, and, in the process of doing so, laid a foundation for the garage. The garage foundation is approximately four feet higher than the existing foundation for the house. In excavating the garage foundation, Christopher (the excavator of the Mineri family) saw water." Mineri was well aware that Christopher found water. "In addition, in the process of building the home, footings were dug in the existing foundation to hold ‘lolly columns’ to support the home. In digging these footings, [Mineri] saw water. Although it is unclear whether the water in question resulted from a high water table or runoff, [Mineri] was aware that there was a high water table in the neighborhood. In an attempt to resolve the [water] problem, he dug footing drains and waterproofed the foundation. The drains were connected to a cement pit buried in the yard."

In the fall of 2015, the plaintiffs, looking to buy their dream home, visited the property and decided to purchase it. Prior to purchasing the home, the plaintiffs took a walk-through and saw the basement, which was dry at that time. Neither Mineri nor anyone else informed them of the water problems that Mineri and his brother Christopher had observed or of the existence of the high water table in the neighborhood. In the plaintiffs’ view, because they were purchasing a new home, they did not need to employ a home inspector.

The plaintiffs initially executed a contract to purchase the property on December 17, 2015. This contract identified the " ‘seller’ " as G & M, but an addendum, identifying repairs that needed to be made, mistakenly identified the " ‘seller’ " as Timberwood. On January 15, 2016, after the mistake had been noticed, the plaintiffs executed a substantively identical contract, identifying G & M as the " ‘seller’ " in the main contract and the addendum. On January 27, 2016, an updated addendum, which identified G & M as the " ‘seller’ " and which identified additional repairs to be made, was executed. Paragraph 7 of the contract provides: "Buyer represents that Buyer has examined the Real Property and is satisfied with the physical condition subject to the Inspection Contingency if applicable. Neither Seller nor any representative of the Seller or Buyer has made any representation or promise other than those expressly stated herein which Buyer has relied upon in making this Agreement." On February 4, 2016, the town of North Branford issued a certificate of use and occupancy.

The closing on the plaintiffs’ purchase of the property occurred on February 10, 2016. As part of the closing, the plaintiffs and G & M executed a so-called punch list agreement identifying additional repairs to be made by February 24, 2016, including a repair for " ‘basement drain pipe leaking.’ " Within one week of the closing, the plaintiffs saw water in the basement. Daniel Onofrio notified Mineri, and the two met on February 17, 2016. Mineri stated: " ‘This is my responsibility, and I will take care of this ASAP.’ " Mineri did not do so, a "lengthy saga of texts" between Daniel Onofrio and the Mineris ensued, and water continued to appear in the basement.

After months of promises, Mineri sent Christopher to deal with the problem. On October 31, 2016, a crew appeared at the property without announcement and dug up the yard in search of the cement pit that Mineri had installed when building the home. After much excavation, the pit was found without water in it. Christopher subsequently put a sump pump in the basement but did not arrange for an electrician to activate it. In April, 2017, the basement flooded with approximately four inches of water, destroying some of the plaintiffs’ personal property. Thereafter, the plaintiffs hired an electrician to activate the sump pump.

On June 29, 2017, the plaintiffs commenced this action against the defendants. On September 8, 2017, the plaintiffs filed the operative complaint consisting of six counts: (1) breach of contract (count one); (2) negligent misrepresentation (count two); (3) negligence (count three); (4) breach of warranties (count four); (5) fraudulent concealment (count five); and (6) violations of CUTPA (count six). Counts one, two, three, five, and six were directed to Mineri, G & M, and Timberwood. Count four was directed to G & M and Timberwood. The defendants filed an answer and special defenses. The case was tried to the court, Hon. Jon C. Blue , judge trial referee, on March 15, 18 and 19, 2019.

On June 17, 2019, the court issued its memorandum of decision rendering judgment as follows: (1) on count one (breach of contract), in favor of the plaintiffs against G & M in the amount of $22,340 and in favor of Mineri and Timberwood; (2) on count two (negligent misrepresentation), in favor of the plaintiffs against G & M in the amount of $22,340 and in favor of Mineri and Timberwood; (3) on count three (negligence), in favor of the defendants; (4) on count four (breach of warranties act), in favor of the plaintiffs against G & M and Timberwood in the amount of $22,340; (5) on count five (fraudulent concealment), in favor of the defendants; and (6) on count six (CUTPA), in favor of the plaintiffs against the defendants in the amount of $22,340. Although the court declined to award punitive damages under CUTPA, the court awarded costs and reasonable attorney's fees pursuant to CUTPA, stating that, by agreement of the parties, the amount of such fees would be addressed at a subsequent hearing. This appeal followed.² Additional facts and background will be set forth as necessary.

I

Mineri and Timberwood claim that the trial court erred in concluding that they violated CUTPA. Specifically, they contend that the court's conclusion that they had violated CUTPA through their " ‘representations or nonrepresentations’ " to the plaintiffs cannot stand because it is inconsistent with its finding in their favor on the plaintiffs’ claims for breach of contract, negligent misrepresentation, negligence, and fraudulent concealment. They also contend that the court erred in extending CUTPA liability to them based on its finding that G & M had violated CUTPA. Although Mineri and Timberwood intertwine these arguments in their appellate brief, we distill and address them separately.

A

Mineri and Timberwood argue that the trial court's conclusion that they violated CUTPA through their omissions to the plaintiffs is inconsistent with its rendering judgment in their favor on the plaintiffs’ claims for breach of contract, negligent misrepresentation, negligence, and fraudulent concealment. We do not reach the merits of this claim because it is inadequately briefed.

"Both this court and our Supreme Court ‘repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. ... [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. ... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.’ ... State v. Buhl , 321 Conn. 688, 724, 138 A.3d 868 (2016) ; see also Parnoff v. Mooney , 132 Conn. App. 512, 518, 35 A.3d 283 (2011) (‘[i]t is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately ....’)." Seaport Capital Partners, LLC v. Speer , 202 Conn. App. 487, 489–90, 246 A.3d 77, cert. denied, 336 Conn. 942, 250 A.3d 40 (2021) ; see also Practice Book § 67-4.

In the present case, Mineri and Timberwood's brief fails to analyze how the court's rendering judgment in their favor as to the counts...