2005 Ct. Sup. 16756
No. X08 CV 03 0196069Connecticut Superior Court Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford
December 19, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (228.00)
TAGGART D. ADAMS, JUDGE.
This action arises out of the sale of a single family residence by the defendants (Mannettis) to the plaintiffs (Zarikos). The Zarikos allege in their fourth amended complaint (amended complaint) statutory and common-law causes of action largely based on claims that the modular house was defectively constructed in numerous ways.
The motion for summary judgment is denied as to the common-law claims contained in the first, fourth and ninth counts alleging breach of contract, negligence and the negligent infliction of emotional distress because there are numerous material unresolved facts respecting these claims that cannot be decided by the court on summary judgment.
The Zarikos have also set forth claims based on alleged violations of various statutes. These statutory causes of action present a slightly different set of issues. The Mannettis contend that the house they sold to the Zarikos, located at 215 Smith Ridge Road in New Canaan, was intended to be their personal residence to replace a house they owned on that property which had been lost to fire. When the new replacement house construction was 70%-80% complete, the Zarikos made an offer to buy it which, after negotiation, was accepted by the Mannettis. Essentially, the Mannettis argue that they sold their own home to the Zarikos and are not subject to the requirements set forth in the several statutes regarding the sale of new homes by someone in the business of selling such homes.
The Zarikos, in opposition to the motion for summary judgment, have presented certain pieces of evidence which they contend show that the Mannettis had built new homes for sale to the public in the past, and this house was no different. There is also an CT Page 16757 affidavit which contradicts the Mannettis’ assertion that the Zarikos’ interest in their house was unsolicited.
Under the New Home Warranties Act which underlies the second count of the amended complaint, a “vendor” owes certain express and implied warranties to a purchaser of improved real estate. General Statutes, Chapter 827, Section 47-116 et seq. A vendor is defined as a “person engaged in the business of erecting or creating an improvement on real estate” Id. “Improvement” means a newly constructed single family dwelling. The Mobile and Modular Homes Statute, General Statutes, Chapter 413, Section 21-85 et seq., is the basis for the Zarikos’ third count and prohibits a person from selling a new modular home “at retail” without a written manufacturer’s warranty covering defects.
The court finds that there are material facts in contention between the parties as to whether the Mannettis were sellers “at retail” of the modular house and whether they were in a position to provide a “manufacturers” warranty. Similarly, there are material facts unresolved as to whether the Mannettis were “engaged in the business of” creating an improvement which is central to the applicability of the New Home Warranties Act. Therefore, the court denies the motion for summary judgment dismissing the second and third counts.
Count six of the amended complaint alleges a claim under the New Home Construction Contractors Act, Chapter 399a of the General Statutes, Section 20-417a et seq. (NHCCA) which requires registration with the state as a new home construction contractor all persons “engag[ing] in the business of new home construction.” A violation of the NHCCA is deemed to be a violation of the Connecticut Unfair Trade Practices Act, General Statutes, § 42-110a(CUTPA). See General Statutes § 20-417g. The Mannettis point out that the Connecticut Department of Consumer Protection which oversees the registration process has repeatedly stated that homeowners doing their own home construction are not required to be registered. Again, the proper resolution of this issue will depend on whether the Mannettis were engaged in the business of new home construction. Additionally, the Zarikos’ direct claim under CUTPA contained in count five will be resolved, at least in part, by a resolution of the fact question of whether the Mannettis were engaged in the conduct of a trade or business. As noted above, these types of open fact questions preclude summary judgment. CT Page 16758
The defendants also urge this court to grant summary judgment dismissing the bulk of the claims against Diane Mannetti on the basis that she has little or no involvement in the case. It is contended she is a school teacher and not a vendor or contractor of new houses. Her affidavit and testimony at the PJR hearing was quite persuasive in this regard. However, the plaintiffs have proferred a number of documents from which a fact finder could find to the controversy.
The motion for summary judgment is denied in its entirety. CT Page 16759