Parker v. Shaker Real Estate, Inc., 16117

Decision Date20 January 1998
Docket NumberNo. 16117,16117
Citation705 A.2d 210,47 Conn.App. 489
CourtConnecticut Court of Appeals
PartiesPaula PARKER et al. v. SHAKER REAL ESTATE, INC., et al.

Ridgely W. Brown, Darien, for appellants (plaintiffs).

Herbert F. Rosenberg, Ridgefield, with whom, on the brief, was James M. Mannion, Bethel, for appellees (named defendant et al.).

Andrew J. O'Keefe, Hartford, with whom, on the brief, was Katherine Cunningham, for appellee (defendant Shirley Szot).

Christopher T. Donohue, Danbury, with whom, on the brief, was Steven R. Smart, for appellees (defendant Scalzo Realty, Inc., et al.).

Before SPEAR, DUPONT and HEALEY, JJ.

SPEAR, Judge.

The plaintiffs in this real estate dispute appeal from the judgment of the trial court rendered after a directed verdict in favor of the defendants. 1 The plaintiffs claim that the trial court improperly (1) directed a verdict in favor of the defendants, (2) reimpaneled the jury after discharging them and again directed the verdict, and (3) dismissed plaintiff Paula Parker's claims for lack of standing. 2

The plaintiffs sought damages stemming from their allegations that (1) during the 1930s and 1940s, the subject property was used as a gasoline station, (2) gasoline tanks had never been removed from the property, (3) hazardous materials were buried on the property and were still there when the plaintiffs purchased the property on September 14, 1990, and (4) the prior use and history of the property was not disclosed to them by any of the defendants. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On September 14, 1990, the plaintiffs purchased the subject property at 4 Fleetwood Avenue in Bethel. Sometime thereafter, Paula Parker claimed to have learned that the property had been the site of a gasoline station in the 1930s and 1940s. The plaintiffs brought suit and thereafter proceeded to trial on an eight count amended complaint that alleged (1) fraudulent misrepresentation on the part of the defendant Szot, (2) fraudulent failure to disclose on the part of all defendants, (3) negligent misrepresentation on the part of all defendants, (4) breach of contract on the part of the defendant Szot, (5) a violation of the Connecticut Unfair Trade Practices Act 3 (CUTPA) on the part of the defendants Shaker Real Estate, Inc., and Mary Connolly, (6) Gary Parker's loss of consortium claim against all defendants, (7) innocent misrepresentation on the part of all defendants, and (8) a second CUTPA claim alleging unfair and deceptive trade practices on the part of the defendant Shaker Real Estate, Inc.

At the close of the plaintiffs' case, the defendants each moved for directed verdicts. The trial court directed a verdict in favor of all defendants on all counts. After the verdict was received and read into the record, the jury was discharged. Upon discovering immediately thereafter that the names of two parties had been omitted from the caption of the verdict form, the court recalled the jury and opened the judgment. The court again directed a verdict for the defendants and discharged the jury. This appeal followed.

I

It is well established that "[a] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.... Miller v. United Technologies Corp. 233 Conn. 732, 752, 660 A.2d 810 (1995)." (Internal quotation marks omitted.) Mullen v. Horton, 46 Conn.App. 759, 763, 700 A.2d 1377 (1997). While our Supreme Court has acknowledged that "litigants have a constitutional right to have issues of fact decided by the jury and not by the court"; Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954); it has also recognized that "[w]hile the direction of a verdict is not favored, it is justified if upon the evidence the jury could not reasonably and legally have reached any other conclusion than that embodied in the verdict as rendered ... and if, had the verdict been rendered for the other party, the evidence was so weak that it would be proper for the court to set it aside...." (Citations omitted; internal quotation marks omitted.) Lurier v. Danbury Bus Corp., 144 Conn. 544, 547, 135 A.2d 597 (1957).

Preliminarily, we note that our review reveals no evidence that potentially hazardous materials were ever buried on the property or were still located on the property when Gary Parker and Audrey Moverly took title, nor was there any evidence in the record from which the jury could have found the existence of any buried gas tanks. There was no evidence presented from which the jury could have found either that the property had been subject to any diminution in value as a result of its prior use as a gasoline station, or that the plaintiffs had sustained any damages therefrom. We now examine the evidence as to each of the counts in the amended complaint in the light most favorable to the plaintiffs.

With respect to counts one and two, fraudulent misrepresentation and fraudulent failure to disclose, our Supreme Court has repeatedly stated that "[t]he 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 it; and (4) the other party did so act upon that false representation to his injury." Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Additionally, "[t]he party asserting such a cause of action must prove the existence of the first three [elements of fraud] by a standard higher than the usual fair preponderance of the evidence, which higher standard [is] 'clear and satisfactory' or 'clear, precise and unequivocal.' " Id., at 540, 661 A.2d 530. Moreover, "[f]raud by nondisclosure, which expands on the first three of [the] four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak...." (Emphasis added.) Gelinas v. Gelinas, 10 Conn.App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987). We find no evidence that any of the defendants either made a false representation to the plaintiffs with respect to the subject property or had knowledge of the prior use and history of the property. Absent such evidence, the plaintiffs' counts of fraudulent misrepresentation and fraudulent failure to disclose must necessarily fail.

We will consider the counts of innocent misrepresentation 4 and negligent misrepresentation together. Our Supreme Court has 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.' " Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). "The governing principles [of negligent misrepresentation] 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; internal quotation marks omitted.) Id. We find no evidence that any information regarding the prior use of the subject property was ever supplied to the plaintiffs by the defendants, or that any representation was ever made by the defendants to the plaintiffs with respect to the prior use of the property. 5 Moreover, the plaintiffs failed to present any expert testimony to establish the standard of care required of the defendant real estate agencies or their agents with respect to disclosure in the circumstances of this case. Our Supreme Court has previously determined that a claim of negligent misrepresentation fails where "the plaintiff [fails] to present the necessary expert testimony to inform the jury either about the applicable standard of professional skill or care or about the conformity of the defendant's conduct to that standard of professional behavior." Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987). Thus, the claims for negligent misrepresentation and innocent misrepresentation must also fail.

In the fourth count of the amended complaint, breach of contract, 6 the plaintiffs allege that, "[a]s a result of the defendant Shirley Szot's breach of contract, the plaintiffs have suffered direct contract damages, as well as incidental and consequential damages." The plaintiffs presented no evidence to show direct contract damages, incidental damages, or consequential damages. Specifically, no evidence was presented to show a diminution in market value of the property as a result of the alleged breach. Moreover, no evidence was presented regarding the damages that were allegedly sustained as a result of the prior use and history of the property as a gasoline station. Thus, the plaintiffs' evidence did not make out a prima facie case of breach of contract.

With respect to the allegations of CUTPA violations, our Supreme Court has stated that "[t]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief." (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638, 698 A.2d 258 (1997). "An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established." (Internal quotation marks omitted.) Id., at 638, 698 A.2d 258, quoting Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, ...

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