Opinion
No. 07 5002700
May 25, 2010
MEMORANDUM OF DECISION
I. Background
This vigorously contested home inspection case originated when Mary Ellen Viggiano, (hereinafter "plaintiff") brought a writ, summons and complaint on January 14, 2007, against Sound Home Inspections, Inc. (hereinafter "defendant") alleging both negligence and breach of contract in connection with a home inspection done on property at 14 King Fisher Way, Waterford, Connecticut (hereinafter "the property"). The defendant, in its answer of April 2, 2007, essentially denied the allegations relating to liability and alleged a special defense that it had conducted its inspection in accordance with the applicable standards set forth by the Department of Consumer Protection.
A trial was had to the court on May 6, 2010, at which both parties were well represented by counsel, presented testimony and exhibits. Briefs were filed thereafter.
II. Finding of Facts
From the evidence, including reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following findings are made.
On or about June 28, 2005, the plaintiff entered into a contract to purchase the property with the then owner. The contract (Plaintiff's Exh. 3) included a provision for an inspection by the buyer for wood-destroying organisms, radon gases, and structural/mechanical systems. The controversy here involved the structural/mechanical aspect of the inspection. The plaintiff was required by the terms of the contract to report on any dissatisfaction by July 5, 2005.
On or about July 2, 2005, the plaintiff contracted with the defendant's agent to conduct a home inspection of the property (hereinafter "the agreement").
An inspection was made by the defendant's agent and a report given on said date (hereinafter "the report"). The plaintiff paid in full for the inspection and report fully completing her obligations under the agreement. The inspection was conducted in accordance with the "Connecticut Home Inspection Standards of Practice" promulgated by the Connecticut Home Inspection Licensing Board, Department of Consumer Protection of the State of Connecticut (Def's Exh. F) and the Standards of Practice and Code of Ethics of the American Society of Home Inspectors (Def's Exh. G).
The report contained various problems which were either remedied by the seller or otherwise accepted by the plaintiff.
The plaintiff relied on the report and purchased the property in September 2005. Thereafter, the plaintiff herself discovered what she thought might be defects which should have been discovered by the inspection. There was, however, no credible evidence that the items, such as the subsequent leak in the roof, the rotting of wood around the door, or the extra cost of work because of some modular construction, were in fact items which should have been disclosed in the report under the standards of care for such inspections. The very qualified expert produced by the plaintiff, James Blonshine, did not himself conduct an inspection of the property. He did not see the property until about four years after the inspection and report. He acknowledged that house and component systems deteriorate over time. The court did not find credible the opinion offered as compared to the testimony of Mr. Morgan.
III. The Law
The plaintiff has the burden of proof of the claims in the complaint by a preponderance of the evidence. Northrop v. Allstate Insurance Co., 247 Conn. 242 (1998). The burden of proving the special defenses lies with the defendant. Selvaggi v. Miron, 60 Conn.App. 600 (2000).
Courts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties. Lussier v. Spinnato, 69 Conn.App. 136, 794 A.2d 1008 (2002); Carlin Pozzi Architects, P.C. v. Bethel, 62 Conn.App. 483, 488-89, 767 A.2d 1272 (2001).
As most other civil matters, "a breach of contract claim . . . requires proof by a preponderance of the evidence." Foley v. Huntington Co., 42 Conn.App. 712, 732 n. 7, 682 A.2d 1026, cert. denied, 239 Conn. 931 CT Page 11109 683 A.2d 397 (1996). "Whether there was a breach of contract is ordinarily a question of fact." Colliers Dow Condon, Inc. v. Schwartz, 77 Conn.App. 462, 471, 823 A.2d 438 (2003). The plaintiff has the burden of proving his various claims and the trier of fact is entitled to believe or disbelieve any testimony. Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 623, 717 A.2d 1211 (1998). Furthermore, the fact that certain evidence is not controverted does not mean that it must be denied. DeBrizzi v. Georgette, 11 Conn.App. 515, 518, 528 A.2d 407 (1987).
IV. Analysis and Conclusion
The plaintiff did not sustain her burden of proof with respect to either the negligence or the contract counts of the complaint as it relates to the obligations of the defendant under the agreement. The evidence did not establish that the defects shown to exist were in fact those types of defects which would have been discovered and should be noted in an inspection which conforms to the standards required.
Judgment may enter for the defendant on both counts of the complaint, with costs.