197 Conn.App. 421
Conn. App. Ct.2020Background
- Dana Berger (buyer, self-represented) entered a purchase agreement with Guy and Diane Deutermann for residential property at 5 Dunns Lane, Old Lyme.
- Sellers’ disclosure listed a ten‑year‑old roof; buyer’s inspector reported multiple defects including roof discoloration/growth and recommended replacement.
- Parties signed an inspection resolution addendum: sellers to pay $8,800 for roofing per a Cris Construction proposal, hire a licensed contractor for garage foundation repairs, and have the chimney cleaned/inspected.
- Berger alleged the sellers breached the addendum (used a different roofer who misinstalled shingles, only broom‑swept the chimney, and performed unlicensed foundation repairs) and asserted multiple contract, fraud, negligent misrepresentation, and civil theft claims; sellers counterclaimed that Berger defaulted by failing to close.
- After a three‑day bench trial, the trial court found for the defendants on Berger’s claims, held Berger failed to close, and that defendants rightfully retained her $12,000 deposit; Berger appealed but did not order trial transcripts (filed JD‑ES‑38 stating none were necessary).
- The appellate court concluded the record was inadequate without transcripts, declined to reach the merits of Berger’s substantive claims, and affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraudulent misrepresentations in trial exhibits/false testimony | Exhibits and testimony were fraudulent and influenced court findings | Exhibits/testimony were proper; court credited defendants | Appellate court declined to review due to absence of trial transcripts; judgment affirmed |
| Roof improperly installed / shingle misinstallation | Sellers did not hire Cris Construction and used a roofer who failed to follow manufacturer instructions | Sellers performed agreed repairs and satisfied resolution | Declined to review merits for lack of transcript; affirmed trial judgment |
| Failure to consider Diane Deutermann’s interrogatory answers | Diane’s interrogatory answers conflicted with Guy’s testimony and were ignored | Trial court credited witness testimony and resolved credibility | Declined to review because record/transcripts not provided; affirmed |
| Honest claim of right re: retention of deposit | Berger: retention of $12,000 was wrongful and not justified | Defendants: retained deposit under an honestly held claim of right because buyer defaulted | Trial court found defendants acted under an honestly held claim of right and retained deposit; appellate court affirmed (declining broader review due to inadequate record) |
| Failure to close on purchase / defendants’ counterclaim | Berger: she did not breach or was unfairly treated | Defendants: Berger failed to close and was in default per agreement | Trial court found Berger failed to close and allowed defendants to retain deposit; appellate court affirmed on record grounds |
Key Cases Cited
- Vasquez v. Rocco, 267 Conn. 59 (2003) (absence of transcript prevents appellate review of claimed trial errors)
- Buehler v. Buehler, 175 Conn. App. 375 (2017) (court will not speculate when record is incomplete; may decline review)
- Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61 (2007) (appellate court must not guess factual predicates; complete record required)
- Lucarelli v. Freedom of Information Commission, 136 Conn. App. 405 (2012) (appellant bears responsibility to provide an adequate record)
- Federal Natl. Mortgage Assn. v. Buhl, 186 Conn. App. 743 (2018) (appellate court may decline claims when appellant fails to provide adequate record)