Opinion
No. CV 07-5012598
August 12, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #110
FACTS
The plaintiff, Lisa Russell, filed a complaint on July 18, 2007, alleging in a single-count that on or about August 2, 2006, she and the defendant, Ambassador Property Group, LLC, entered into a written agreement wherein the plaintiff agreed to purchase from the defendant real property known as 343 Shelton Avenue, New Haven, Connecticut. According to the complaint, said premises were conveyed by the defendant to the plaintiff on August 31, 2006. The complaint claims that the defendant negligently repaired or installed shelves in the kitchen cabinets. Specifically, the complaint alleges that the defendant did not use appropriate screws and/or nails to attach the shelf to the wall; did not properly inspect the shelf after it was installed; and did not test the shelf to ensure that it could hold any amount of weight. The plaintiff further alleges that prior to August 31, 2006, the defendant remained in complete possession and control of the premises and that while in possession and control of said premises, the defendant caused work to be done on the property which included replacing and/or repairing the kitchen cabinets. The plaintiff claims that she sustained injury and damages when, on September 2, 2006, the cabinet became detached from the wall, knocking her to the ground.
On May 6, 2008, the defendant filed a motion for summary judgment, maintaining that the plaintiff's claim cannot survive as a matter of law because the merger doctrine bars her from bringing any claim based upon the purchase and sale agreement. In support, the defendant attached a memorandum of law, the purchase and sale agreement, the agreement to repair items after the plaintiff's inspection, the warranty deed, and the affidavit of Paul Dupervil.
On June 5, 2008, the plaintiff filed a memorandum in opposition to the motion for summary judgment. The plaintiff has filed her own affidavit in support of the opposition to the defendant's motion. The matter was argued at short calendar on June 10, 2008.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refuse evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 318-19.
In the present case, the defendant, Ambassador Property Group, LLC, moves for summary judgment on the basis that the plaintiff cannot succeed as a matter of law. First, the defendant argues that the plaintiff's claim is barred by the merger doctrine. Secondly, the defendant argues that, irrespective of the merger doctrine, the plaintiff's claim is barred by the contract's own terms, as the plaintiff waived any rights regarding the condition of the kitchen cabinets and released the defendant from liability for defects by failing to raise any objections after inspecting the premises.
In response, the plaintiff argues that the merger doctrine is not appropriate in the present case because the doctrine only applies to covenants of title where the contract creates rights collateral and independent of the conveyance. She maintains that the merger doctrine does not apply to her case because she is alleging negligence on the part of the defendant. The plaintiff also argues that any waiver provisions do not apply to latent defects and alleges that the defective cabinets were not discoverable upon inspection.
Merger Doctrine
Connecticut courts have long recognized the doctrine of merger by deed. See Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985). "The general rule is that acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract; and all stipulations contained therein . . . are merged in the deed although omitted therefrom." (Internal quotation marks omitted.) Id. "[U]nder the principle of merger by deed, the terms of the deed would automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights . . ." (Citation omitted.) Mongillo v. Commissioner, 214 Conn. 225, 231, 571 A.2d 112 (1990). "Although acceptance of the deed is prima facie [the completion of the contract], that is not dispositive of the issue. Rather, a party seeking to avoid the merger doctrine may defeat the presumption by producing evidence of intent that certain stipulations and representations in the contract of conveyance were to survive the deed." Covey v. Comen, Superior Court, judicial district of Fairfield, Docket No. CV 90 276269 (May 4, 1992, Katz, J.), rev'd on other grounds, 46 Conn.App. 46, 698 A.2d 343 (1997).
In support of its position that the plaintiff's claim is barred by the merger doctrine, the defendant cites Boyer v. Miller, Superior Court, judicial district of Hartford, Docket No. CV 05 4013309 (November 28, 2006, Elgo, J.). In Boyer, the plaintiffs filed a complaint alleging breach of contract, specifically that the property was left in a condition of unreasonable wear and tear in violation of the terms of the purchase agreement. Before closing, the plaintiffs observed numerous holes in the walls, as well as numerous screws left in the walls. Notwithstanding their concerns, the plaintiffs signed the warranty deed and received title to the property. In response to the plaintiffs' complaint, the defendant filed a motion for summary judgment on the grounds that any claims arising from allegations of a breach of contract were extinguished by virtue of the merger doctrine and, further, that the plaintiffs waived any claims they may have had regarding the condition of the home and released the sellers from liability for any defects. With respect to the merger doctrine, the court found that acceptance of the deed left the plaintiffs with no relief for their breach of contract claims. The court emphasized that the plaintiffs failed to present the court with evidence of any unusual circumstances, such as fraud or misrepresentation, which would justify a departure from the doctrine. The court further stated that the plaintiffs failed to demonstrate that the parties intended to have any contract provisions survive the merger.
The plaintiff counters that a negligence claim is collateral and independent of the transfer and, therefore, the merger doctrine is not appropriately applied to the present case. As support, the plaintiff cites Arsenault v. Crossen Builders, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 096791 (May 2, 1991, Leuba, J.) [4 Conn. L. Rptr. 12]. In Arsenault, the court was faced with the question of whether a construction portion of a contract remained independent of, and did not merge with, the deed. The defendant entered into a contract with the plaintiffs to build a home which the plaintiffs would then purchase. The plaintiffs alleged that the defendant breached the contract because the water supply system did not conform to the contract's requirements. The defendant moved to strike the breach of contract count of the plaintiffs' complaint on the grounds that once the contract merged with the warranty deed, the plaintiffs no longer had a cause of action for any claims arising under the contract since the contract did not contain any survival language. In denying the motion to strike, the court held that "[w]hether this Court finds the construction portion of the contract has remained independent of the deed, or in the alternative, that its independence is a question of fact, in either case, the defendant's motion to strike must be . . . denied." Id.
Although the plaintiff uses Arsenault to support the proposition that a negligence claim survives the merger of the purchase and sale agreement and the deed, the Arsenault decision does not address, in any way, whether a negligence claim survives the merger doctrine. The plaintiff argues that Arsenault makes clear that "breach of warranty, false representation, and CUTPA claims" do not merge into the deed and following that reasoning, the plaintiff asserts that a negligence claim should also fall outside the merger doctrine. Contrary to the plaintiff's contention, however, the Arsenault decision does not support such a statement, as only the breach of contract claim was before the court and the court's decision did not speak to any of the other counts.
As further support, the plaintiff also cites Denman v. Mamoulakis, Superior Court, judicial district of Litchfield, Docket No. 045002 (April 21, 1988, Pickett, J.) (3 C.S.C.R. 440). In Denman, the court was faced with a motion to strike a third-party complaint asserting a breach of contract claim. The seller in Denman conveyed the land "free from all encumbrances whatsoever," however, the third-party plaintiffs alleged that the seller of the land breached the covenant against encumbrances by conveying the land with a portion of a neighbor's driveway encroaching on the property. In response, the third-party defendants filed a counterclaim alleging breach of contract in that the third-party plaintiffs refused to accept the property as agreed to in the contract. In denying the motion to strike the breach of contract counterclaim, the court merely held that the allegations set forth a legally sufficient counterclaim.
The plaintiff's use of Denman to support the proposition that a negligence claim survives the merger of the deed and the purchase agreement is misplaced. First, in Denman, the applicable motion was a motion to strike, not a motion for summary judgment. As discussed in Arsenault, the issue of whether the merger doctrine forecloses a party from bringing suit for a specific cause of action is an issue of fact depending on the intention of the parties, and is not properly addressed in a motion to strike. See also Covey v. Comen, supra, Superior Court, Docket No. CV 90 276269. Thus, cases where a cause of action is challenged in a motion to strike on the grounds that the claim is foreclosed by the merger doctrine and the motion is subsequently denied, do not provide support for an unrelated cause of action surviving the merger doctrine. Secondly, the court in Denman was faced with a complaint alleging breach of contract of a particular contract provision, not a complaint alleging negligence. Outside of setting forth boilerplate language regarding the merger doctrine, the decision in Denman does not provide this court with any relevant analysis to support the proposition that a negligence claim survives the merger doctrine.
Lastly, the plaintiff cites Williams v. Younginer, 851 N.E.2d 351 (Ind.App. 2006), trans. denied, 860 N.E.2d 598 (Ind. 2006). In Williams, the plaintiffs entered into a contract with the defendants to purchase a newly constructed home. Within days of taking possession, the plaintiffs noticed water leaking into their basement. After failing to fix the leakage, the plaintiffs filed a complaint alleging breach of express warranty, breach of implied warranty of workmanship, breach of implied warranty of fitness for habitation, breach of contract, negligence, fraud, and constructive fraud. The defendants moved for judgment on the evidence on all claims. The trial court granted judgment in favor of the defendants on the negligence and fraud claims and denied the motion on all other claims. The trial court then entered judgment on the jury's verdict in favor of the plaintiffs for breach of implied warranty of fitness for habitation, breach of implied warranty of workmanship, breach of express warranty, and constructive fraud. The defendants appealed.
On appeal, the Court of Appeals of Indiana held that the implied warranties that arose with the execution of the purchase agreement, specifically the implied warranties of reasonable workmanship and habitability, survived merger by deed. After reviewing the procedural history of the Williams case, however, it is clear that judgment was granted in favor of the defendants with respect to the negligence count, and thus, as a matter of law, the negligence count did not survive in Williams.
It is worth noting that the cases cited by the plaintiff involve newly constructed homes and the implied warranties that attach to such properties. In the present case, however, the dwelling unit in question is not one that was newly constructed, but is one that was rehabilitated. Thus, case law pertaining to the survival of implied warranties associated with newly constructed dwelling units is not applicable. See General Statutes § 47-116 et seq.
The plaintiff has not presented the court with any evidence demonstrating that the parties intended that certain stipulations and representations in the purchase and sale agreement were to survive the deed. Therefore, upon acceptance of the deed, the terms of the deed automatically replaced and superseded the terms of the underlying agreement, so that the plaintiff is foreclosed from bringing any negligence claims relating to the condition of the property that do not arise from the terms of the deed.
Contract Waiver Provisions
Similar to Boyer, the defendant also argues that, irrespective of the merger doctrine, the plaintiff is foreclosed from bringing suit, as pursuant to the terms of the contract the plaintiff waived any claims that she may have had regarding the condition of the kitchen cabinets and released the defendant from liability for any defects. With respect to the waiver argument in Boyer, the court held that after inspection, the plaintiffs' failure to object to the challenged conditions released the defendant from liability relative to any claimed defects in the property. The court observed that "the obvious purpose of the inspections is to afford buyers the ability to inform themselves of any issues or concerns so they may raise them before the transaction is completed" and to construe the provision otherwise "would render the right to inspections futile." Boyer v. Miller, supra, Superior Court, Docket No. CV 05 4013309.
In the present case, section eight of the "Purchase and Sale Agreement," entitled "Inspection Contingency," allows the buyer's designee to inspect the real property during the period from seller's acceptance until the date specified by the parties, which was seven days from the signing. If the buyer is not satisfied with the physical condition of the real property, and so notifies the seller in writing, than the buyer may either: (1) terminate the agreement, or; (2) give the seller the option to correct the conditions that are unsatisfactory to the buyer. The section further states that if the buyer "fails to notify the Seller as provided herein, this contingency shall be deemed satisfied and this Agreement shall continue in full force and effect."
As evidenced by the punch list submitted by the defendant, the plaintiff, after inspecting the premises, notified the defendant of various conditions on the property that were in need of repair prior to closing. Assuming, arguendo, that the subsequent agreement could be construed as creating collateral rights and was intended by the parties to survive the deed, the plaintiff's list of conditions that needed repairs failed to include or make any reference to cabinet repairs. See Udisky v. Stanton, Superior Court, judicial district of Fairfield, Docket No. CV 94 31070 (September 29, 1995, Ronan, J.) (holding that the merger doctrine does not bar an agreement set forth in an addendum). Thus, by the terms of the waiver provisions in section eight of the purchase and sale agreement, by failing to notify the seller of any cabinet deficiencies after inspecting the property, the plaintiff released the defendant from liability for any claimed defects regarding the cabinets.
The plaintiff argues that the failure to request cabinet repairs is a result of the latency of the defects. However, the plaintiff fails to provide any support for this assertion outside of a self-serving affidavit stating that it "was impossible to have discovered that the defendant . . . would not properly hang cabinetry in the kitchen." This statement, standing alone, is not enough to create an issue of material fact. See Zielinski v. Kotsoris, supra, 279 Conn. 318 (stating that it is not enough for the opposing party merely to assert the existence of such a disputed issue as mere assertions of fact are insufficient to establish the existence of a material fact).
Subsequent to the agreement to repair certain items disclosed during the inspection, the defendant conveyed the property to the plaintiff by warranty deed. Apart from the list of the items disclosed during inspection, in which the plaintiff requested repairs be made, there is no evidence of any other agreement, oral or written, between the parties that reference any problems or issues involving the cabinets or any requests to have the cabinets repaired. Therefore, after having the opportunity to conduct a full inspection of the property, and failing to object to the condition of the cabinets, the plaintiff released the defendant from liability relative to any claimed defects with respect to the cabinets.
CONCLUSION
The plaintiff has failed to provide the court with any evidence showing that the parties agreed that a claim for negligence would survive the merger of the purchase agreement into the deed.
Furthermore, irrespective of the merger doctrine, the plaintiff waived any claims she might have had for defective cabinets as a result of her failure to notify the defendant of any defects pertaining to the cabinets after inspecting of the property.
For the reasons set forth above, the court concludes that, in the absence of any disputed material facts, the defendant's motion for summary judgment is granted.