Dickau v. Mingrone ( 2020 )

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JASON DICKAU v. LAWRENCE MINGRONE
(AC 42256)
Keller, Elgo and Devlin, Js.
Syllabus
The plaintiff, who had purchased certain residential real property in New
Haven from the defendant, brought an action seeking damages for, inter
alia, breach of contract for the defendant’s failure under the contract
to deliver a property that contained three legal dwelling units. The
defendant purchased the property in 1979, and had used it as a three
unit residence during his ownership. In 2011, the city building depart-
ment sent a letter to the defendant, informing him that the department’s
records indicated that the property was a two unit residence, and that
it may have been altered without approval from the building department.
Thereafter, the defendant spoke with the building department’s director,
and the defendant believed that the matter was resolved. Subsequently,
the defendant represented in a real estate listing that the property was
a three unit residence and sold the property to the plaintiff in 2015,
without informing the plaintiff of the 2011 letter. Thereafter, the plaintiff
became aware of the 2011 letter upon inspecting the records of the
building department on an unrelated matter. The trial court rendered
judgment for the defendant, from which the plaintiff appealed, claiming,
inter alia, that the trial court erred in finding that the city building
department had not made a determination that the plaintiff’s property
contained only two residential units. Held:
1. The trial court did not err in finding that the city building department
had not made a determination regarding the use and occupancy status
of the property; contrary to the plaintiff’s claim that the building depart-
ment had determined that the property contained a two unit residence,
there was sufficient evidence in the record to support the trial court’s
finding, as the building department official testified that no determina-
tion regarding the number of legal units had been made, no code viola-
tions regarding the number of legal units had been communicated to
the defendant, and no further action had been taken after the issuance
of the 2011 letter; moreover, although the plaintiff was correct in
asserting that the record contained some contradictory evidence regard-
ing the building department’s determination, the mere existence of such
evidence was insufficient to undermine the finding of the trial court.
2. The plaintiff could not prevail on his claim that the trial court erred in
not finding that the plaintiff established the existence of damages, as
the defendant cannot be liable for damages if, pursuant to the court’s
findings, he was not liable for the underlying causes of action.
Argued November 19, 2019—officially released February 25, 2020
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Haven and tried to
the court, Markle, J.; judgment for the defendant, from
which the plaintiff appealed to this court. Affirmed.
Russell Bonin, with whom was Stuart A. Margolis,
for the appellant (plaintiff).
Albert J. Oneto IV, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Jason Dickau, appeals from
the trial court’s judgment in favor of the defendant,
Lawrence Mingrone, on the plaintiff’s complaint, which
alleged breach of contract, negligent misrepresentation,
intentional misrepresentation, and innocent misrepre-
sentation, relating to the defendant’s sale of real prop-
erty to the plaintiff.1 On appeal, the plaintiff claims
that the court’s findings that (1) the Office of Building
Inspection and Enforcement for the City of New Haven
(building department) had not made a determination
that the number of legal units in the property was less
than three, and (2) the plaintiff had failed to establish
the existence of damages as to each of his claims were
clearly erroneous.2 We disagree with the plaintiff and,
accordingly, affirm the judgment of the trial court.
The record and the trial court’s memorandum of deci-
sion reveal the following pertinent facts. From approxi-
mately December, 1979, until July 24, 2015, the defen-
dant owned property located at 46 Ruby Street in New
Haven (property). The defendant used the dwelling on
the property as a three unit residence for the duration
of his ownership. The property consisted of a ground
level unit,3 first floor unit, and second floor unit.
The building department enforces the provisions of
the State Building Code.4 On May 24, 2011, the building
department sent a letter to the defendant, informing
him that the building department’s records indicated
that the property was a two unit dwelling, but that the
dwelling may have been altered through the use of
the ground level space as an additional dwelling unit
‘‘without the required permits, approvals or a [c]ertifi-
cate of [u]se and [o]ccupancy’’ (2011 letter).5 The 2011
letter directed the defendant to contact the building
department to schedule an inspection of the property.
Subsequently, the defendant contacted the building
department via telephone and spoke to the director
at the time, Andrew Rizzo. At the conclusion of the
conversation, the defendant ‘‘was confident that [the]
matter had been resolved and [that] the letter was sent
in error and [that he] was to disregard it.’’ Following
the phone conversation, the building department did
not follow up with the defendant, inspect the property,
issue fines, or take any further action regarding the
2011 letter.
In 2012, a tree fell on the property during a storm and
a representative from the building department, John
Raffone, inspected the property, including the ground
level unit. Following the inspection, the building depart-
ment did not issue notification of any code violations
with respect to the use and occupancy of the property,
nor did the building department require the defendant
to make any changes to the ground level unit. Addition-
ally, the defendant visited the building department and
met with Raffone and Rizzo regarding the immediate
displacement of his tenants following the damage
caused by the tree. During this meeting, the building
department representatives did not raise any concerns
regarding code violations with respect to the use and
occupancy of the property.
Further, in 2013, the defendant filed a residential
rental license renewal application with Livable City Ini-
tiative (LCI).6 In this application, the defendant listed
the property as consisting of three residential units. On
December 9, 2013, a representative from LCI performed
an inspection of the property and did not report any
code violations. Following the property’s successful
inspection, LCI issued a residential rental license to
the defendant for three units, which was valid from
December 10, 2013 until June 28, 2016.
In 2015, the defendant posted an advertisement for
the sale of the property on an online marketplace, where
he listed the property as consisting of three, one bed-
room units. The advertisement also listed the property’s
annual rental income as $35,000. On May 19, 2015, the
defendant entered into a written contract to sell the
property to the plaintiff and, on July 24, 2015, the parties
closed on the property. At the closing, the defendant
provided the plaintiff with a comprehensive seller’s affi-
davit in which the defendant affirmed that he had ‘‘no
knowledge of any violation of any covenants, restric-
tions, agreements, conditions or zoning ordinances
affecting said premises.’’ The defendant also provided
the plaintiff with an income and expense statement,
which listed gross income for the rental of the proper-
ty’s three residential units. The defendant did not notify
the plaintiff of the 2011 letter prior to or at the time of
the closing.
In late 2015, the plaintiff, then the owner of the prop-
erty, went to the building department because a tree
branch damaged a power line on the property. It was
at this time that the plaintiff first became aware of
the 2011 letter in the building department’s file for the
property. Upon finding the 2011 letter, the plaintiff
believed that the property contained only two legal
units and that significant monetary expenses would be
required to convert the property to three units. There-
after, the plaintiff initiated the present action against
the defendant. On April 18 and 19, 2018, a two day trial
in the matter was heard by the court, Markle, J. The
court rendered judgment for the defendant as to the
remaining four counts of the complaint. See footnote
1 of this opinion. The court rested its judgment on
its finding that the building department never made a
determination that the property contained less than
three units and, therefore, the defendant neither
breached the contract with the plaintiff by providing a
property with less than three units, nor falsely repre-
sented to the plaintiff that the property legally contained
three units. This appeal followed.
I
The plaintiff first claims that the court’s finding that
‘‘the building department [had] not made any determina-
tion’’ with respect to the designation of the property’s
occupancy status was clearly erroneous. Specifically,
the plaintiff claims that the building department had
determined that the property legally contained two
units. We disagree with the plaintiff and conclude that
the court was not clearly erroneous in finding that the
building department had not made a determination
regarding the use and occupancy status of the property.
We begin by setting forth the applicable standard of
review. ‘‘[I]t is axiomatic that [t]he trial court’s [factual]
findings are binding upon [an appellate] court unless
they are clearly erroneous in light of the evidence and
the pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witnesses.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Jalbert v. Mulligan,
153 Conn. App. 124, 132, 101 A.3d 279, cert. denied,
315 Conn. 901, 104 A.3d 107 (2014). Further, ‘‘the mere
existence in the record of evidence that would support
a different conclusion, without more, is not sufficient
to undermine the finding of the trial court. . . . [T]he
proper inquiry is whether there is enough evidence in
the record to support the finding that the trial court
made.’’ (Emphasis omitted.) In re Jayce O., 323 Conn.
690, 716, 150 A.3d 640 (2016).
The plaintiff’s breach of contract claim was depen-
dent on a finding that the defendant failed to perform
under the contract by delivering a property with less
than three legal units. The plaintiff’s three misrepresen-
tation claims7 were dependent on a finding that the
defendant falsely represented to the plaintiff that the
property contained three legal units. Therefore, as the
parties acknowledge, if the court properly found that
the building department did not make a determination
that the property contained less than three legal units,
that finding would be fatal to all four of the plain-
tiff’s claims.
Upon careful review of the record, we conclude that
the court’s finding that the building department had not
made a determination that the property was less than
a legal three unit residence is supported by facts in the
record. In making its finding, the court credited the
testimony of the director of the building department,
James Turcio. In particular, Turcio testified that he had
‘‘never given an opinion on [the] property . . . .’’8 The
court also relied on the fact that, following the issuance
of the 2011 letter, the building department did not follow
up on the potential code violation or issue any notices
of code violations to the defendant. The following
exchange at trial during the cross-examination of Turcio
by the defendant’s counsel is especially illustrative:
‘‘Q. So isn’t it fair to say that the letter is not really
a finding that the property—that the . . . first level
apartment is not in violation of the building code but
it’s merely an inquiry of the defendant asking him to
contact the city?
‘‘A. Basically it’s asking . . . to contact an inspector
so he could do an inspection to confirm whether it is
an illegal unit or not.
‘‘Q. Correct. And . . . because . . . Rizzo did not
order him to cease using the basement apartment as a
dwelling, it means that this letter did not make a finding
that the [ground level] apartment was in violation of
the building code?
‘‘A. Was even there, yes.’’
The following additional exchange at trial between
the defendant’s counsel and Turcio highlights that the
building department’s actions were inconsistent with
the building department’s having made a determination
that the property contained less than three units:
‘‘Q. In . . . 2011, when . . . Rizzo was the building
director, if he believed there was an ongoing violation
after the [2011 letter] was sent, he was required under
the building code to send a cease and desist letter for
use of the [ground level] apartment. Correct?
‘‘A. Yes.
‘‘Q. And is there anything in the building department
file to indicate that . . . Rizzo ever issued an order
to [the defendant] to cease using the [ground level]
apartment as a dwelling?
‘‘A. No.
‘‘Q. And, in fact, there is a letter from 2012, which
indicates that the property was reinspected by . . .
Raffone in the year 2012. Correct?
‘‘A. Yes.
‘‘Q. And that letter from 2012 made no mention of
any issue under the building code with regard to the
[ground level] apartment being in violation of the certifi-
cate of use and occupancy requirement. Correct?
‘‘A. Yes.’’
The court further reasoned that the building depart-
ment’s actions following the aforementioned 2012
inspection supported the finding that the building
department had not determined that the property con-
tained less than three legal residential units. Specifi-
cally, there was evidence that, subsequent to the inspec-
tion, Raffone referred the defendant to several of the
property’s building code violations with respect to dam-
age caused by the fallen tree. None of these code viola-
tions, however, referenced improper use and occu-
pancy of the property, despite the fact that the
property’s use, as a three unit residence, would have
been evident at the time of the inspection.
In making its finding, the court also reasoned that,
although the building department is the sole entity
responsible for making a determination regarding hous-
ing code violations and following up on such code viola-
tions, the building department’s communication, or lack
thereof, with LCI regarding the contents of the 2011
letter, supported the finding that the department had
not a made a determination as to the property’s occu-
pancy status. In 2013, LCI issued a three year residential
permit for the property to the defendant, for three rental
units. The director of LCI, Rafael Ramos, testified that
the 2011 letter was not in LCI’s file for the property
in question. Ramos further testified that the building
department traditionally follows protocol to communi-
cate code violations with LCI and that if LCI had knowl-
edge of the issues outlined in the 2011 letter, then it
would have been required not to issue the license to
the defendant until having received a certificate of occu-
pancy from the building department.
The plaintiff is correct in his assertion that the record
contains some contradictory evidence regarding the
building department’s determination as to the proper-
ty’s use and occupancy status.9 As stated previously,
however, the mere existence of such evidence is not
enough to undermine the finding of the trial court when
the record contains sufficient evidence to support the
court’s finding. See, e.g., In re Jayce O., supra, 323
Conn. 690. Here, the trial court’s finding is adequately
supported by evidence in the record and it is not within
this court’s province to question that finding.
On the basis of the foregoing, we conclude that,
because the court’s finding that the building department
had not made a determination that the property con-
tained less than three legal units was based on sufficient
evidence in the record, the court properly ruled in favor
of the defendant as to the plaintiff’s breach of contract
count, as well as the plaintiff’s three misrepresenta-
tion counts.
II
Next, the plaintiff claims that the court’s finding that
the plaintiff failed to establish the existence of damages
as to each of his counts was clearly erroneous. On the
basis of our resolution of the claim discussed in part I
of this opinion,10 we reject the plaintiff’s claim that the
trial court was clearly erroneous in finding that the
plaintiff failed to establish the existence of damages
because the defendant cannot be liable for damages if,
pursuant to the court’s findings, he is not liable for the
underlying causes of action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On November 19, 2016, prior to trial, the court, Wilson, J., granted the
defendant’s motion to strike count five of the plaintiff’s complaint, in which
the plaintiff alleged that the defendant violated the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq. That ruling is not a subject
of this appeal.
2
In his brief, the plaintiff asserts that the trial court was clearly erroneous
‘‘(1) . . . in its finding that the [building department] had not made a deter-
mination that the number of legal units in the property was less than three,’’
‘‘(2) . . . in its finding that each of the plaintiff’s claims relied on a possible
future event, rather than an existing fact,’’ ‘‘(3) . . . in its findings that the
plaintiff failed to establish the existence of damages as to each of his claims,’’
and ‘‘(4) . . . in its finding that the plaintiff only offered speculative evi-
dence as to the existence and extent of his damages on each of his claims.’’
We have combined the plaintiff’s second, third, and fourth claims, as they
appear in his brief, into one damages claim, and, as explained later in
this opinion, we reject the damages claim in light of our resolution of the
first claim.
3
Although the building department refers to the lowest level unit of the
property as the ‘‘basement’’ unit, throughout this opinion we refer to the
lowest level unit as the ‘‘ground level’’ unit because the unit is level with
the ground.
4
General Statutes § 29-253 (a) provides: ‘‘The State Building Code, includ-
ing any amendment to said code adopted by the State Building Inspector
and Codes and Standards committee, shall be the building code for all towns,
cities and boroughs.’’
5
The 2011 letter specifically cited a potential violation under § 110.1 of
the 2005 State Building Code, which states: ‘‘Pursuant to [General Statutes
§ 29-265 (a)], no building or structure erected or altered in any municipality
after October 1, 1970, shall be occupied or used, in whole or in part, until
a certificate of occupancy has been issued by the building official, certifying
that such building or structure or work performed pursuant to the building
permit substantially complies with the provisions of the State Building
Code.’’
6
Pursuant to chapter 17 of title III of the New Haven Code of Ordinances,
LCI issues residential rental licenses to landlords who own two or more
units within a dwelling. If a property is in violation of a building code,
then LCI cannot issue a residential rental license until the violation has
been rectified.
7
The plaintiff’s misrepresentation claims are negligent misrepresentation,
intentional misrepresentation, and innocent misrepresentation.
‘‘[A]n action for negligent misrepresentation requires the plaintiff to estab-
lish (1) that the defendant made a misrepresentation of fact, (2) that the
defendant knew or should have known was false, and (3) that the plaintiff
reasonably relied on the misrepresentation, and (4) suffered pecuniary harm
as a result.’’ Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910
A.2d 209 (2006).
‘‘The essential elements of an action in [common-law] fraud, as we have
repeatedly held, are that: (1) a false representation was made as a statement
of fact; (2) it was untrue and known to be untrue by the party making it;
(3) it was made to induce the other party to act upon it; and (4) the other
party did so act upon that false representation to his injury.’’ (Internal
quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124,
142, 2 A.3d 859 (2010).
‘‘The elements of innocent misrepresentation are (1) a representation of
material fact (2) made for the purpose of inducing the purchase, (3) the
representation is untrue, and (4) there is justifiable reliance by the plaintiff
on the representation by the defendant and (5) damages.’’ Frimberger v.
Anzellotti, 25 Conn. App. 401, 410, 594 A.2d 1029 (1991).
8
Turcio’s testimony that he never gave an opinion on the property
occurred at trial during the cross-examination of Turcio conducted by the
defendant’s counsel:
‘‘Q. Why did the building department look at a 1963 Price and Lee [tele-
phone] directory in assessing whether this property was a two-family versus
a three-family property?
‘‘A. I can’t speak to a past building official’s judgment.
‘‘Q. Did you yourself rely on the 1963 Price and Lee [telephone] directory
when you gave your opinion that the property was a two-family property?
‘‘A. I have never given an opinion on this property and the day I took
over, I took the Price and Lee and threw it out.
‘‘Q. And why did you throw it out?
‘‘A. [Because] there’s nothing in the building code that tells me I could
determine occupancy of a house based on how many phones they have in it.
‘‘Q. So . . . if [Rizzo] relied on the Price and Lee [telephone] directory
when he indicated that records from this department show that the [prop-
erty] is a two-family dwelling, that’s not based on information that the
building code permits him to consider?
‘‘A. Correct.’’
9
The plaintiff points to a particular exchange at trial between the court
and Turcio during cross-examination conducted by counsel for the defendant
to support his assertion that the building department had, in fact, made a
determination that the property contained less than three units:
‘‘Q. So just to clarify, so you as an official from the city have determined
that it is now, for lack of a better term, a legal two-family? I mean you’ve
accepted that?
‘‘A. For lack of a better term, yes.
‘‘Q. And the city accepts that, that it’s a two?
‘‘A. Yes.
‘‘Q. But you don’t accept that it’s a three?
‘‘A. I do not accept that it’s a three.’’
10
At oral argument, counsel for both the plaintiff and the defendant agreed
that, if the plaintiff’s first claim fails, then the plaintiff cannot prevail on
the second claim.