WAGNER, JUDGE TRIAL REFEREE.
This case arises out of a real estate transaction involving the plaintiff, Rozelyn Beck, and the defendants, Wayne and Michelle Pare (the Pares), William Raveis Real Estate Inc. (Raveis), The Prudential Real Estate Affiliates d/b/a Prudential Connecticut Realty and CTRE L.L.C., d/b/a Prudential Connecticut Realty (Prudential).
The following facts are alleged in the plaintiff's six-count complaint dated September 16, 2003. The plaintiff entered into an agreement with the Pares to purchase property owned by the Pares located at 53 Nod Road, Windsor, Connecticut. Prudential was the agent for the Pares for the sale of the property and Raveis was the agent for the plaintiff. Prior to entering into the purchase and sale agreement, the plaintiff had received a disclosure report from the Pares that any "rot and water problems" were "unknown" to them.
On June 14, 2001, an inspection by Schaefer Inspection Service revealed that there was "standing water" in the crawl space of the house. The plaintiff was informed by the Pares that the water in the crawl space was due to excess condensation caused by the improper installation of the insulation in the area above the crawl space. The plaintiff then requested through her agent, Raveis, that the Pares correct the problem with the insulation. Thereafter, the plaintiff received a written response from Pares through Prudential stating: "[W]e are not willing to have the insulation in the crawl space reversed. There are two vents in the crawl space area that were not opened. When these vents are opened during the summer the condensation is reduced. The insulation as installed provides the best level of efficiency during the winter months."
Although the plaintiff saw water in the crawl area prior to closing, the plaintiff closed on the property on July 9, 2001 and allowed the Pares to remain in possession until August 20, 2001. After taking possession of the house, the plaintiff learned that during the occupancy CT Page 7034-ah period, the Pares had underground pipes placed across a neighbor's driveway as well as other repair work to the basement to correct the water problem. The plaintiff claims that a reinspection of the crawl space following a period of heavy rainfall revealed that the pooling water in the crawl space area may have been an ongoing problem.
The six-count complaint alleges: fraudulent concealment (count one); breach of contract (count two); breach of fiduciary duty (count thee); breach of covenant of good faith and fair dealing (count four); negligent failure to disclose (count five); and negligent misrepresentation (count six). The plaintiff has withdrawn her claims against Raveis.
On January 8, 2003, Prudential filed this motion to strike counts one, two, five and six on the ground that the plaintiff has failed to allege sufficient facts to support the various claims alleged in her complaint.
I.
Prudential moves to strike count one, the claim of fraudulent concealment because the plaintiff failed to allege any facts in her complaint to show that Prudential knew of the water problem, concealed the problem or made statements to mislead the plaintiff. In response, the plaintiff claims that Prudential should have known that the problem existed by observation of the water stains in the crawl area when determining the price of the properly, and as such, Prudential intentionally concealed this fact from the plaintiff.
To prove fraudulent concealment, the plaintiff is required to show: (1) a defendants' actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff's cause of action; (2) that defendants' intentional concealment of these facts from the plaintiff; and (3) that defendants' concealment of the facts for the purpose of obtaining delay on the plaintiff's part in filing a complaint on their cause of action. Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).
Plaintiff's principal argument is based on her claim that Prudential should have known that the water problem existed because of the water stains in the crawl area. The plaintiff, however, fails to allege sufficient facts in count one of her complaint to show that Prudential had actual knowledge of the water problem and intentionally concealed the problem from the plaintiff. The sole factual allegation against Prudential is contained in paragraphs seven and eight of count one, which simply state that the plaintiff requested the Pares to correct the water problem in the crawl space and Prudential subsequently passed along the Pares' CT Page 7034-ai written response denying the plaintiff's request to address the water problem is clearly insufficient to sustain a claim of fraudulent concealment.
II.
In moving to strike count two claiming breach of contract, Prudential asserts that plaintiff fails to allege sufficient facts to establish that a contractual relationship existed between the plaintiff and Prudential. Plaintiff claims that she was a third-party beneficiary of the contract between Prudential and the Pares.
It is well settled that one who is neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract. Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993). "The proper test to determine whether a [contract] creates a third party beneficiary relationship is whether the parties to the [contract] intended to create a direct obligation from one party to the [contract] to the third party." Rapaport Benedict, P.C. v. Stamford, 39 Conn. App. 492, 498, 664 A.2d 1193 (1995).
The plaintiff does not allege that she had a contract with Prudential. Although plaintiff argues that she was a third-party beneficiary of the contract between Prudential and the Pares, nowhere in the complaint does she [allege] that she was an intended beneficiary of that contract. Our Supreme Court has reaffirmed the traditional test for determining the enforceability of contract rights by holding that the intent of both parties to a contract is the controlling factor in such cases. See Grigerik v. Shape, 247 Conn. 293, 317, 721 A.2d 526 (1998).
The motion to strike count two of the plaintiff's complaint is granted.
III
Prudential moves to strike count five on the ground that the plaintiff fails to set forth facts which either state or suggest that Prudential had any knowledge of latent and material defects which it had a duty to disclose to the plaintiff.
The cause of action for negligent misrepresentation lies when: (1) defendant had a duty to use reasonable care in giving information; (2) defendant supplied false information; (3) upon which the plaintiff relied; (4) to its damages. De La Concha v. Aetna Life Insurance, Superior Court, judicial district of Hartford, Docket No. CV 98 0580129 CT Page 7034-aj (Aug. 23, 2002, Satter, J.T.R.), 33 Conn.L.Rptr. 179. When the claim is for failure to disclose information, the elements of the cause of action are the same. A failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose. Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 180, 757 A.2d 14 (2000).
The plaintiff argues that when she requested that the Pares correct the water problem, Prudential had an opportunity at that time to address the issue and a duty to disclose any defects to the plaintiff. However, the only factual allegation involving Prudential in this case is that Prudential passed along a written response from the Pares to the plaintiff. This is insufficient to support a claim that Prudential knew about the defects in the crawl area, had a duty to disclose them and failed to do so.
IV.
Prudential moves to strike the final count of the plaintiff's complaint which alleges negligent misrepresentation. In response, the plaintiff reasserts her claim from count five that Prudential failed to disclose a material fact which it knew or should have known.
As discussed above, the two essential elements of negligent misrepresentation are a duty on the part of the defendant to disclose and reliance on the part of the plaintiff.
Plaintiff does not allege that Prudential supplied false information; instead, she claims that Prudential's silence has the same effect as a misrepresentation. Although it may be possible that a misrepresentation may be based on silence, there is no factual allegation here to sustain such a claim.
Prudential's motion to strike counts one, two, five and six of the plaintiff's complaint is granted.
Wagner, JTR CT Page 7034-ak
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