2009 Ct. Sup. 16148
No. CV 05-4018716Connecticut Superior Court Judicial District of Hartford at Hartford
September 24, 2009
MEMORANDUM OF DECISION
ROBERT SATTER, JTR.
Plaintiffs Timothy and Edith Lapoint bring this action against defendants Steve and Linda Houghtaling for alleged misrepresentations in a residential property condition disclosure report and against defendant David Balkum, d/b/a A S Inspection Company for negligence in fulfilling his duties as a professional home inspector.
The facts are as follows:
On or about January 2005, the plaintiffs negotiated with the defendants Houghtaling to purchase the property of the Houghtalings at 93 Hitchcock Road, Southington, Connecticut. During the course of the negotiations, the Houghtalings submitted to the plaintiffs a Residential Property Condition Disclosure Report, as required by Conn. Gen. Stat. § 20-327b. The report provides that “the seller is obligated to disclose here any knowledge of any problem regarding the following . . .” As to item 16, “Foundations Slab problems/settling?,” defendants Houghtaling answered, “No.” As to item 17, “Basement water/seepage/dampness?,” the defendants answered, “No.” As to item 22, “Floor problems?,” defendants answered, “No.”
Plaintiff also hired David Balkum d/b/a A S Inspection Company to do a home inspection of the subject premises. The inspection was done on January 17, 2004. The report found the foundation and basement walls in “satisfactory condition.” The report indicated the inspection was a “visible inspection.” The inspector does not “move personal belongings, stored items . . . or anything else which blocks or may block the viewing of components . . . Cosmetic damages to walls/flooring is not specifically identified nor addressed in this report . . . This inspection report may not include minor settlement and minor cracks in concrete, veneer and walls that would be within normal tolerance or standard and does not impair the structural function of the building.”
Although the plaintiffs viewed the subject premises and observed CT Page 16149 exterior cracks in the foundation wall, they relied upon the Residential Property Condition Disclosure Report supplied by defendants Houghtaling and the inspection report of David Balkum in deciding to purchase the house. The closing occurred on January 28, 2005 for the price of $289,900.00.
Within a few weeks after the sale, the plaintiffs hired Robert Gambino of R.J.G. Consultants, Inc., licensed engineer, to inspect the house. That firm found five cracks in the foundation wall, vertical movement of the foundation system and horizontal displacement of all or of a portion of the foundation wall assemblage. The cost of remedying those defects were so high that the plaintiffs never made them.
Plaintiffs lived in the house from January until May 2005 and then rented it to Mr. LaPoint’s mother. During the time the plaintiffs lived in the house they found no seepage in the basement.
Defendant Steve Houghtaling testified he knew of the cracks in the foundation walls but he believed them insignificant and cosmetic. Although they admitted termites, which the Houghtalings disclosed in their Residential Property Condition Disclosure Report, the cracks did not cause any water in the basement. He kept musical instruments in the basement without their being damaged by water.
Defendant, David Balkum testified that the basement was extremely cluttered and there was insulation on the basement wall when he made his inspection. He did not see the cracks in the basement walls, but he found no problem with the foundation walls and no evidence of water seepage. He also testified that houses always have some settlement and cracks do occur but, in this instance, they were not of a structural nature.
In the fall of 2007, the plaintiffs listed their house on the market at $319,000.00. Mr. LaPoint testified that he entered into a contract to sell the house for $299,000.00, but the sale fell through when the buyer wanted the basement deficit corrected. After that he reduced the price to $275,000.00 and it was sold at that price to Jeremy Monteiro in January 2007. Mr. Monteiro testified that he paid exactly the price demanded by the plaintiffs, and further testified that in the years since his purchase there has never been any water in the basement. He also said the previous sale was not consummated because of a septic tank problem.
Plaintiffs presented a real estate appraiser who appraised the house as of January 16, 2007 at $300,000.00. They claim as damages the difference between that appraised value and the sales price to Monteiro of $275,000.00, or $25,000.00. CT Page 16150
The court finds that the cracks in the basement walls were cosmetic in nature and not of any significance. The Houghtalings, for the many years they lived in the house, the plaintiffs for the several months they lived in the house, and Mr. Monteiro for the two years he lived in the house, all never experienced any water in the basement as a result of these cracks.
The court finds defendants Houghtaling answered the question in the property condition report truthfully. To their knowledge there were no problems with the foundation, the basement, or the floors. As a result, plaintiffs’ count of misrepresentation fails. Also, their knowledge is essential to a claim of violation of Section 20-327b. As stated i Giametti v. Inspections, Inc., 76 Conn.App. 352, 360 (2003): “It [Section 20-327b] does not, however, require a vendor to assume the role of warrantor of conditions of which the vendor was in fact unaware.” Thus, the plaintiffs have not proven their claim of misrepresentation based on the property condition report.
Defendant Balkum was not negligent in rendering his inspection report. The report clearly stated he was not obligated to report defects which were hidden and not plainly visible. The basement, when he inspected it, was so cluttered and the basement wall was covered with insulation so that Balkum could not see the cracks on the basement wall.
Moreover, plaintiffs alleged in their complaint that the defendant Balkum was a professional home inspector. It is axiomatic that the plaintiff in a professional negligence or malpractice action, “must establish through expert testimony not only the standard of care but also that the defendant’s conduct did not measure up to that standard.” Pisel v. Stamford Hospital, 180 Conn. 314, 334 (1980). At the trial plaintiffs never offered expert’s witness to establish the standard of care for a professional home inspector. Thus, the plaintiffs failed to prove their claim of negligence against the defendant Balkum.
Finally, the defendants’ claim of damages is based on the appraisal of the property as of January 16, 2007. That was two years after the sale by the defendants Houghtalings to the plaintiffs Lapoint. The court cannot speculate on the value of the house as of January 28, 2005. Thus, the plaintiffs have failed to prove their damages.
Plaintiff Edith Lapoint claims damages for emotional distress but her testimony was so weak on that issue that it failed to establish those damages by a fair preponderance of the evidence. CT Page 16151
Judgment may enter for the defendants Steve and Linda Houghtaling and for the defendant David Balkum d/b/a A S Inspection Company.
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