Nicole Post
v.
Carlos Mejias et al.

No. CV075011964S


Superior Court of Connecticut
Judicial District of New Haven at New Haven

MEMORANDUM OF DECISION

This is a civil action brought by the plaintiff Nicole Post against the defendants Carlos Mejias and Margarita Mejias, husband and wife, seeking money damages, attorneys fees and punitive damages. The plaintiff purchased a three-family residence located at 74 Prospect Street, Meriden, CT (property) from the defendants, closing on October 16, 2006.

On or about June 14, 2007 the plaintiff filed a five-count complaint against the defendants, alleging breach of contract, breach of a covenant of good faith and fair dealing, fraudulent misrepresentation, negligent misrepresentation and violations of the Connecticut Unfair Trade Practices Act (CUTPA). The complaint alleges, in substance, that in connection with the sale of the property the defendants provided the plaintiff with a mold and mold forming condition disclosure indicating that the defendants had no knowledge of any mold or conditions that could lead to mold on the subject premises, that the defendants had actual knowledge of mold on the premises, that the defendants failed to notify the plaintiff of the existence of the mold and concealed said problem from the plaintiff, that the plaintiff relied on the defendants statements in the mold and mold forming condition disclosure, that the defendant's failed to exercise reasonable care in obtaining and communicating the condition of the premises to the plaintiff, and that the defendants' conduct constituted a violation of CUTPA. The defendants admit only that on or about October 16, 2006 the defendants closed on the sale of the property to the plaintiff. By way of special defenses the defendants allege that any damages sustained were caused by the plaintiff's greater negligence, and that there was an accord and satisfaction at the closing which discharged the defendants. The plaintiff has denied the special defenses.

This court heard this case in a bench trial on May 28 and June 3, 2009. The witnesses offered by the plaintiff were the plaintiff, Nicole Post, the second floor tenant, Magdalina Morin, the defendants, Carlos Mejias and Margarita Mejias, and the housing code enforcement officer for the City of Meriden, Thomas Kilroy. The defendants offered an environmental consultant, Nathan Bauer, and the defendants' daughter, Mayra Mejias Lazares.

The plaintiff is employed as an administrative assistant by the Connecticut Real Estate Investors Association. She describes her occupation as "a professional real estate investor." In approximately August 2006 the plaintiff became interested in purchasing the property which the defendants had listed for sale. The three-family house was 111 years old. The defendants had executed a residential property condition report (exhibit 1) pursuant to Connecticut General Statutes Section 20-327b. Included in the report was a form entitled "mold and mold-forming condition disclosure." The defendants had checked a box on that form which stated that "Owner has no knowledge of the presence of conditions that could lead to the growth of mold (excessive humidity, water, leakage, drainage problems, flooding, etc.)." A real estate purchase contract (exhibit 2) was signed by the plaintiff on August 29, 2006 calling for a closing on September 30, 2006. The plaintiff had added in Paragraph 9, Other Conditions, the following, "Seller to repair first floor bathroom ceiling leak and mold." A copy of exhibit 1 was given to the plaintiff on August 31, 2006.

The plaintiff visited the property four times prior to the closing on October 16, 2006. On September 14, 2006 she was accompanied by an inspector from Tiger, a home and building inspection company, who submitted a report on his findings (exhibit 4). The report expressly did not include "any identification, evaluation or detection of mold," and stated that "mold is a fungus that is found almost everywhere." Tiger "strongly recommended that the plaintiff consult with an environmental expert and obtain a home environment inspection to test for mold." The plaintiff was required to initial the "Important Notice Regarding Mold." On September 17, 2006 the plaintiff sent the defendants a list of 14 items that needed repairs which she said "were found by the house inspector at the inspection on September 14, 2006." Seven of the items concerned water and water leaks, which are listed on exhibit 1 as conditions that can lead to mold.

Thomas Kilroy, the housing code enforcement officer for the City of Meriden has regularly inspected the subject premises. He inspected the first and second floors on November 3, 2005, the third floor on September 18, 2006, and the first and second floor on November 15, 2007. He does a walk through inspection and looks at the walls, floors and baseboards where mold would appear. He has never found any mold on his inspections. On his 2007 inspection he noted that there was a fair amount of condensation on the second floor and so notified the plaintiff by mail on December 10, 2007 (exhibit B). The condensation was thereafter adequately addressed by the plaintiff.

The plaintiff claims that when she saw exhibit 1, the mold and mold-forming conditions report, she decided to rely on that document, not order any tests for mold, and to enter into the real estate purchase contract. The court notes that the plaintiff's offer to purchase, exhibit 2, is dated August 29, 2006, and in that offer the plaintiff made reference to the leak and mold in the first floor bathroom, which indicates she had already inspected the property and discovered conditions that could lead to the growth of mold, and mold. The plaintiff received the residential property condition disclosure report, exhibit 1, on August 31, 2006, two days after she had made her offer to purchase. The defendants signed the real estate purchase contract, which had been prepared and signed by the plaintiff on September 1, 2006. The plaintiff has failed to prove that she relied on exhibit 1, the mold and mold-forming condition disclosure, when she made her offer to purchase.

The defendants have filed a special defense of accord and satisfaction as to all counts. "An accord is a contract between creditor and debtor for the settlement of a claim by some performance other than that which is due. Satisfaction takes place when the accord is executed... Where the claim is unliquidated, however, any sum, given and received in settlement of the dispute, is a sufficient consideration." WH McCune, Inc. v. Revzon, 151 Conn. 107 (1963) 193 A.2d 601.

The mold and mold-forming condition disclosure, exhibit 1, furnished to the plaintiff by the defendants did not certify that there was no mold on the property. As was testified to by Bauer, mold is everywhere. Exhibit 1 certified that the defendants had "no knowledge of the presence of conditions that could lead to the growth of mold." The plaintiff then hired Tiger to do a house inspection. Tiger does not determine if there is mold. The report from Tiger, exhibit 4, has several references to conditions that could lead to the growth of mold which are also referred to in exhibit 1. The plaintiff, based on the Tiger report, made out a punch list, exhibit 5, of items that required repairs and other attention. This list was the subject of considerable discussion prior to and at the closing and it was resolved by the payment of $1,000 by the defendants to the plaintiff to cover all of the fourteen items listed on exhibit 5. The plaintiff did not rely on the defendants' certification in exhibit 1 in connection with the purchase of the property. The defendants have proven their special defense of accord and satisfaction which is applicable to all counts.

An element which is basic in all of the counts alleged is proof of damages incurred as the result of the defendants' conduct. Answer number 31 on exhibit 11 purports to list the plaintiff's damages. The plaintiff's post-trial brief alleges that she must replace the walls, ceilings, carpets, furniture, clothing and other significant property, all at a substantial expense, and that she will lose rental income and disruption of tenancies in her three-family rental property. These damages are alleged to total "over $30,000" in addition to her legal costs. The brief does not discuss that the evidence concerning the work which is alleged to be required and the costs of said work is contained in exhibits that were hearsay in nature and were admitted not for the truth of the contents. Therefore, there is no evidence with respect to these damages. The claims relating to relocating the tenant on the second floor have not been proven since that tenant is on a month to month lease and the plaintiff is not obligated to relocate her. In addition, there was no evidence introduced that establishes that the tenant will be required to vacate. The claims for personal income losses or business losses allegedly totaling $20,000 have not been proven.

The court has found that the defendants did not certify in exhibit 1 that there was no mold on the property. They certified that they had no knowledge of any conditions that could lead to the growth of mold. The court has found that the plaintiff did not rely on exhibit 1 but conducted her own examinations of the property and hired Tiger to inspect the property. In addition the court has found that the plaintiff has failed to prove her claims for damages and losses. And lastly, the court has found that the defendants have proven their special defense of accord and satisfaction which applies to all counts.

For the foregoing reasons, judgment may enter in favor of the defendants on all counts.

William L. Hadden, Jr., J.T.R.