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Silicon Valley Homeowner Wins $450,000 Settlement in Real Estate Fraud Lawsuit!
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The Lawsuit |
MICHAEL G. DESCALSO, ESQ. (SBN 104354)
PAUL G. MINOLETTI, ESQ. (SBN 118192)
GREENE, CHAUVEL, DESCALSO & MINOLETTI
951 Mariner’s Island Blvd., Suite 630
San Mateo, CA 94404
Telephone: (650) 573-9500
Facsimile: (650) 573-9689
Attorneys for plaintiff
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
UNLIMITED JURISDICTION
IN AND FOR THE COUNTY OF SANTA CLARA
RALPH SIMPSON,
Plaintiff,
vs.
ENTER NAMES HERE
and, DOES ONE through TWENTY, inclusive,
Defendants.
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Case No.
COMPLAINT FOR DAMAGES
COMES NOW PLAINTIFF, RALPH SIMPSON, AND FOR A CAUSE OF ACTION
AGAINST DEFENDANTS, AND EACH OF THEM, ALLEGES AS FOLLOWS:
I.
COMMON FACTS
1. Plaintiff Ralph Simpson was, at all relevant times, an
individual residing in the County of Santa Clara.
2. Defendant Valley of California, Inc. dba Coldwell Banker
(hereinafter “Coldwell Banker”) was, at all relevant times,
a California corporation in good standing licensed to do
business and doing business within the State of California
and the County of Santa Clara and was the real estate brokerage
firm representing, through its authorized agents, both plaintiff
as buyer and Stonehenge Properties as seller of that certain
real property known as 17682 Blanchard Drive, Monte Sereno,
California (hereinafter “the Blanchard property”).
3. Defendant Lou Rae Kagel (hereinafter “Kagel”) was, at all
relevant times, an individual residing in the County of Santa
Clara and a residential real estate agent duly licensed to
engage in the purchase and sale of residential real estate on
behalf of buyers and sellers of said real estate and, through
her employment relationship at Coldwell Banker, was the agent
for seller Stonehenge Properties during all aspects of the
negotiation and purchase of the Blanchard property.
4. Defendant Douglas Rea (hereinafter “Rea”) was, at all
relevant times, an individual residing in the County of Santa
Clara and a residential real estate agent duly licensed to
engage in the purchase and sale of residential real estate on
behalf of buyers and sellers of said real estate and was the
agent for plaintiff during all aspects of the negotiation and
purchase of the Blanchard property.
5. Defendant Lynn O’Brien (hereinafter “O’Brien”) was, at all
relevant times, an individual residing in the County of Santa
Clara and a principal of Stonehenge Properties, Inc. (hereinafter
“Stonehenge”). At all relevant times she was acting under the
auspices of Stonehenge and within the course and scope of her
position as principal in Stonehenge.
6. Defendant Stonehenge was, at all relevant times, a California
Corporation in good standing licensed to do business and doing the
business of real property acquisition and improvement within the
State of California and the County of Santa Clara.
7. At all relevant times Kagel was acting within the course and
scope of her employment relationship with Coldwell Banker and
was so authorized by Coldwell Banker to act on behalf of
Stonehenge. At all relevant times Rea was within the course and
scope of his employment relationship with Coldwell Banker and was
so authorized by Coldwell Banker to act on behalf of plaintiff.
8. Plaintiff is ignorant of the true names and identities of
those defendants sued as Doe defendants and sues said defendants
under these fictitious names. When the true names and identities
of said Doe defendants become known to plaintiff, he will amend
this complaint to so allege the true names and identities of said
Doe defendants.
9. Venue of this matter is properly laid in Santa Clara County
under California Code of Civil Procedure Section ___ in that the
subject contract in this matter was entered into in Santa Clara
County and the individual defendants are residents of Santa Clara
County.
10. On or about ___ plaintiff retained the services of Rea, a
licensed real estate agent, to represent him in his search for a
home in the Monte Sereno/ Los Gatos area. At that time Rea held
himself out as a knowledgeable and professional real estate agent
working thorough the Coldwell Banker office located at 449 North
Santa Cruz Avenue, Los Gatos, California.
11. At all relevant times Kagel was working through the office
of Coldwell Banker Real Estate located at 449 North Santa Cruz
Avenue, Los Gatos, California and was acting within the course
and scope of her employment at Coldwell Banker.
12. At all relevant times Kagel was the listing agent for the
Blanchard property, representing the interests of defendant
Stonehenge Properties, who was the owner of the Blanchard
property, and was acting within the course and scope of her
employment at Coldwell Banker.
13. On or about August 15, 2001 plaintiff entered into a contract
for the sale of the Blanchard property. Parties to the contract
were plaintiff as buyer and Stonehenge as seller. A true and
correct copy of that contract is attached hereto as Exhibit 1.
14. At the time plaintiff entered into the contract with
Stonehenge plaintiff was told by O’Brien, Kagel and Rea that the
Blanchard property consisted of “almost an acre”, that the house
contained 5300 square feet, that the house had been wired for
fiber-optic cabling, that the house had three-zone air
conditioning, that the Blanchard property consisted of enough
free space to allow for the construction of a swimming pool and
additional 800 square foot outbuilding on the property and that
the City of Monte Sereno had approved the additional construction
of swimming pool and 800 square foot structure.. In fact none of
these representations was true.
15. Plaintiff relied on these representations and, on the basis
of that reliance, agreed to purchase the Blanchard property for
the sum of $3,250,000. Had plaintiff known the true nature of
the circumstances relating to the Blanchard property he would not
have agreed to purchase the property.
16. In fact, the Blanchard property was not capable of having
improvements made on it as had been represented to plaintiff.
In accordance with local ordinances and other regulations, the
Blanchard property was over-improved in that more than forty (40)
percent of its area was covered with either structure or other
impermeable surface. Thus, while O’Brien, Kagel and Rea were
representing to plaintiff that a pool and additional 800 square
foot outbuilding could be built on the property, in fact they
could not. O’Brien, Kagel and Rea knew this at all relevant
times as the project as originally designed called for a
swimming pool. The pool was not built by Stonehenge because the
pool would have violated the local ordinances and other
regulations by exceeding the allowed area of impermeable surface
on the property. Instead of disclosing this information to
plaintiffs, O’Brien, Kagel and Rea affirmatively represented to
plaintiff that there was enough free space on the property to
allow for the construction of a swimming pool and 800 square foot
structure and that the city of Monte Sereno had approved such
additional construction.
17. In or about ___, 2003, plaintiff began the process of building
a swimming pool on the property. Toward that end he contacted the
City of Monte Sereno for purposes of obtaining the proper permits.
He was advised that he would not be allowed to build the swimming
pool because the property already had impermeable surface area in
excess of forty (40) percent. He was advised that he would be able
to build the swimming pool only if he removed a sufficient amount of
impermeable surface to make the total impermeable surface, including
the swimming pool, no more than forty percent of the property. Prior
to that time plaintiff had no idea that the Blanchard property had
been so over-improved as to make it impossible to build the swimming
pool and additional 800 square foot outbuilding. Prior to the close
of escrow plaintiff had been assured by Rea that he would be able to
build a swimming pool and additional 800 square foot outbuilding on
the property.
18. In order to build the swimming pool in accordance with the
local ordinances and other regulations, plaintiff had to undertake
the removal and replacement of a large section of the driveway of
the property with paving stones, which allowed the swimming pool
to be built within the confines of the local ordinances and other
regulations of the City of Monte Sereno. Plaintiff was able to
get a variance to allow the construction of the swimming pool
notwithstanding the fact that it slightly exceeded the forty (40)
percent rule. Plaintiff has been advised by the city of Monte
Sereno that he will not be allowed to build an 800 square foot
structure anywhere on the property.
19. Plaintiff was deceived by the misrepresentations of Kagel,
O’Brien and Rea and, in reliance on those representations,
entered into the contract and purchased the Blanchard property.
As a result of the misrepresentations of Kagel, O”Brien and Rea,
plaintiff has suffered damages, both past and future, including
overpaying for the property, the cost of replacing a large
portion of the driveway with paving stones so as to be allowed
to build the swimming pool, the loss of the future value of the
property with an 800 square foot structure on it, and other
damages subject to proof at the time of trial of this matter.
II.
FIRST CAUSE OF ACTION
(Fraud - Kagel)
20. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 19 herein as though fully set
forth in haec verba.
21. Kagel was, at all relevant times, a professional real estate
agent experienced for many years in representing clients in the
sale and purchase of residential real property in the Monte
Sereno area. At all relevant times she knew, or should have
known, that the Blanchard property consisted of impermeable
surface area in such an amount as to make the construction of a
swimming pool and additional 800 square foot outbuilding
impossible and in violation of the rules and regulations of the
City of Monte Sereno. She also knew, or should have known, that
the property did not consist of “almost an acre”, that the
property was not wired for fiber optic cabling, did not have a
three zone air conditioning and did not have on it a residence
containing 5300 square feet.
22. Nevertheless and notwithstanding this knowledge, and with an
intent that plaintiff rely on her representations that these
things were true, Kagel represented to plaintiff that these
things were true.
23. Plaintiff relied on these representations to his detriment.
Based on these representations, plaintiff agreed to pay the sum
of $3,250,000 for the Blanchard property. Plaintiff expected he
would be getting a property that could be improved with a
swimming pool and additional 800 square foot outbuilding and
which, accordingly, would increase in value over time. In fact
the property cannot ever attain the increased value plaintiff
anticipated as the property can never be so configured as to
allow for the construction of an additional 800 square foot
building.
24. Plaintiff has been damaged as a result of Kagel’s
misrepresentations in that he overpaid for the property,
incurred unanticipated costs in replacing a large part of his
driveway and lost future value in not being able to construct an
additional 800 square foot building on the property.
25. In making these representations to plaintiff Kagel intended
for him to rely on them so that she could profit by receiving a
commission on the sale. She made these representations knowing
they were false and with an intent to deceive plaintiff for her
own gain. Such conduct on the part of Kagel is despicable and
rises to the level of oppressive in that she took advantage of
her superior knowledge of the Blanchard property in order that
she would receive a commissionbased on a percentage of the sale
price.
III.
SECOND CAUSE OF ACTION
(Intentional Failure to Disclose Material Fact - Kagel)
26. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 25 herein as though fully set forth
in haec verba.
27. The fiber optic cabling, 5300 square feet in the residence,
and the ability to add a swimming pool and 800 square foot
outbuilding were all material facts, that is, they materially
affected the value and desirability of the Blanchard property.
Kagel knew of the existence of these material facts and
intentionally did not disclose them to plaintiff.
28. Kagel’s nondisclosure of these material facts was intentional
and was done with the intent to induce plaintiff to purchase the
Blanchard property.
29. As a result of Kagel’s intentional nondisclosure of these
material facts, plaintiff was induced to purchase the Blanchard
property and would not have done so if Kagel had not made the
intentional misrepresentations.
30. As a result of Kagel’s intentional nondisclosure of these
material facts plaintiff has suffered damages in that he overpaid
for the property, incurred unanticipated costs in replacing a
large part of his driveway and lost future value in not being
able to construct an additional 800 square foot outbuilding on
the property.
31. In failing to disclose these material facts to plaintiff,
Kagel intended for him to rely on them so that she could profit
by receiving a commission on the sale. She failed to disclose
these material facts with an intent to deceive plaintiff for her
own gain. Such conduct on the part of Kagel is despicable and
rises to the level of oppressive in that she took advantage of
her superior knowledge of the Blanchard property in order that
she would receive a commission based on a percentage of the sale
price.
IV.
THIRD CAUSE OF ACTION
(Negligent Failure to Disclose Material Fact - Kagel)
32. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 31 herein as though fully set
forth in haec verba.
33. In performing her duties as the listing agent for this
real estate transaction Kagel had a duty to perform her
functions in a professional and non-negligent manner. These
functions included conducting a reasonably competent visual
inspection of the property and disclosing to plaintiff all facts
that are sufficiently material to affect the value or
desirability of the Blanchard property.
34. Kagel breached this duty in that she negligently failed to
disclose any of these material facts to plaintiff, failed to
conduct a reasonably competent and diligent visual inspection of
the Blanchard property and made material representations of fact
without sufficient knowledge of their veracity.
35. Plaintiff would not have purchased the Blanchard
property had Kagel not failed to disclose these material facts.
36. As a result of Kagel’s negligent failure to disclose material
facts to plaintiff, plaintiff suffered damages in that he
overpaid for the property, incurred unanticipated costs in
replacing a large part of his driveway and lost future value in
not being able to construct an additional 800 square foot
building on the property.
37. In performing her duties as the listing agent for this
real estate transaction Kagel had a duty to perform her
functions in a professional and non-negligent manner. She
breached that duty bymaking material representations of fact to
plaintiff without sufficient knowledge of their veracity.
38. As a result of the negligence of Kagel, plaintiff was damaged
in that he overpaid for the property, incurred unanticipated
costs in replacing a large part of his driveway and lost future
value in not being able to construct an additional 800 square
foot building on the property.
V.
FOURTH CAUSE OF ACTION
(Fraud - O’Brien)
39. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 38 herein as though fully set forth
in haec verba.
40. At all relevant times O’Brien was a principal in Stonehenge
Properties. Under the auspices of Stonehenge, O’Brien purchased
the property and improved it with the construction of the
residence and 700 square foot outbuilding that was ultimately
sold to plaintiff. The Blanchard property was purchased by
Stonehenge on “speculation”, meaning that there was no buyer in
mind at the time the residence was built and that the sole reason
Stonehenge purchased the Blanchard property was the construction
of the residence and sale of the property to a third party such
as plaintiff.
41. After purchasing the Blanchard property, O’Brien, in her
capacity as a principal in Stonehenge, contracted with an
architect to design a residence, swimming pool and 700 square
foot outbuilding on the property. During the course of the
project, O’Brien was advised that the swimming pool could not be
constructed because the property had more than forty (40) percent
impermeable surface area. O’Brien was advised that the city of
Monte Sereno would not allow the construction of a swimming pool
because of its restrictions requiring no more than forty (40)
percent impermeable surface area on any property in its city
limits.
42. Upon learning that the City would not allow the construction
of the swimming pool, O’Brien had the plans modified to remove
the swimming pool. O’Brien never advised plaintiff that the
plans had been modified because as designed originally the
Blanchard property violated the local ordinances and other
regulations of the City of Monte Sereno. To the contrary,
O’Brien represented to plaintiff that a swimming pool and
additional 800 square foot outbuilding could be built on the
property. In addition, O’Brien represented to plaintiff that
the residence at the Blanchard property had fiber optic cabling,
had three zone air conditioning and contained 5300 square feet.
43. At the time O’Brien made these representations she knew them
to be untrue. She made these representations to plaintiff in
order that plaintiff would rely on them and would agree to
purchase the Blanchard property.
44. Plaintiff relied on these representations at the time he
agreed to purchase the Blanchard property.
45. As a result of his reliance on these representations,
plaintiff was damages in that he overpaid for the property,
incurred unanticipated costs in replacing a large part of his
driveway and lost future value in not being able to construct an
additional 800 square foot building on the property.
VI.
FIFTH CAUSE OF ACTION
(Intentional Concealment of Material Fact - O’Brien)
46. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 45 as though fully set forth in
haec verba.
47. The fiber optic cabling, 5300 square feet in the residence,
and the ability to add a swimming pool and 800 square foot
outbuilding were all material facts, that is, they materially
affected the value and desirability of the Blanchard property.
O’Brien knew of the existence of these material facts and
intentionally did not disclose them to plaintiff.
48. O’Brien’s nondisclosure of these material facts was
intentional and was done with the intent to induce plaintiff to
purchase the Blanchard property.
49. As a result of O’Brien’s intentional nondisclosure of these
material facts, plaintiff was induced to purchase the Blanchard
property and would not have done so if O’Brien had not made the
intentional misrepresentations.
50. As a result of O’Brien’s intentional nondisclosure of these
material facts plaintiff has suffered damages in that he overpaid
for the property, incurred unanticipated costs in replacing a
large part of his driveway and lost future value in not being
able to construct an additional 800 square foot building on the
property.
51. In failing to disclose these material facts to plaintiff,
O’Brien intended for him to rely on them so that she could profit
from the sale of the Blanchard property. She failed to disclose
these material facts with an intent to deceive plaintiff for her
own gain. Such conduct on the part of O’Brien is despicable and
rises to the level of oppressive in that she took advantage of
her superior knowledge of the Blanchard property in order that
she would benefit financially in the sale of the Blanchard
property to plaintiff.
VII.
SIXTH CAUSE OF ACTION
(Negligent Concealment of Material Fact - O’Brien)
52. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 51 herein as though fully set forth
in haec verba.
53. In acting as Stonehenge’s representative in
the sale of the Blanchard property to plaintiff, O’Brien had a
duty to conduct a reasonably competent visual inspection of the
property and disclose to plaintiff all facts that are
sufficiently material to affect the value or desirability of
the Blanchard property.
54. O’Brien breached this duty in that she negligently failed to
disclose any of these material facts to plaintiff and failed to
conduct a reasonably competent and diligent visual inspection of
the Blanchard property.
55. Plaintiff would not have purchased the Blanchard property
had Kagel not failed to disclose these material facts.
56. As a result of O’Brien’s negligent failure to disclose
material facts to plaintiff, plaintiff suffered damages in that
he overpaid for the property, incurred unanticipated costs in
replacing a large part of his driveway and lost future value in
not being able to construct an additional 800 square foot
building on the property.
VIII.
SEVENTH CAUSE OF ACTION
(Negligent Failure to Disclose Material Facts – Rea)
57. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 56 herein as though fully set
forth in haec verba.
58. In performing his duties as the selling agent for this real
estate transaction, Rea had a duty to perform his functions in a
professional and non-negligent manner. These functions included
conducting a reasonably competent visual inspection of the
property, inquiring as to any conditions that would materially
affect the desirability or value of the property to plaintiff and
disclosing to plaintiff all facts that are sufficiently material
to affect the value or desirability of the property to plaintiff.
59. Rea breached this duty in that he negligently failed to
inquire as to any conditions that would materially affect the
desirability or value of the property to plaintiff, failed to
conduct a reasonably competent visual inspection of the property
and failed to disclose to plaintiff all facts that were
sufficiently material to affect the value or desirability of the
property to plaintiff.
60. As a result of the negligence of Rea, plaintiff was damaged
in that he overpaid for the property, incurred unanticipated
costs in replacing a large part of his driveway and lost future
value in not being able to construct an additional 800 square
foot building on the property.
IX.
EIGHTH CAUSE OF ACTION
(Negligent Misrepresentation – Rea)
61. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 60 herein as though fully set forth
in haec verba.
62. During the course of his representation of plaintiff in the
purchase of the Blanchard property, Rea had a duty to conduct a
reasonably competent visual inspection of the property, inquire
as to any conditions that would materially affect the
desirability or value of the property to plaintiff and disclose
to plaintiff all facts that are sufficiently material to affect
the value or desirability of the property to plaintiff.
63. During the course of his representation of plaintiff in the
purchase of the Blanchard property, Rea learned, or should have
learned, of the existence of conditions of the property that
would have made the property undesirable to plaintiff. Rea
represented to plaintiff that the property had on it a residence
with fiber optic cabling, a residence with 5300 square feet and
that the property could be further improved by the addition of a
swimming pool and additional 800 square foot outbuilding. At
all relevant times Rea knew these were material facts and
materially affected the desirability and value of the property
to plaintiff.
64. Notwithstanding this knowledge, Rea represented to plaintiff
that the property had on it a residence with fiber optic cabling,
a residence with 5300 square feet and that the property could be
further improved by the addition of a swimming pool and
additional 800 square foot outbuilding. Rea had no reasonable
basis for this belief but nevertheless made these representations
to plaintiff. In fact the representations were false.
65. In making these representations to plaintiff Rea breached
his duty to plaintiff by negligently making to plaintiff
representations of fact that were in fact false.
66. As a result of these negligent misrepresentations, plaintiff
was caused to rely and did rely on them and agreed to purchase
the Blanchard property under the conditions and for the terms as
set forth in the contract for the purchase of the Blanchard
property.
67. As a result of these negligent misrepresentations, plaintiff
has suffered damages in that he overpaid for the property,
incurred unanticipated costs in replacing a large part of his
driveway and lost future value in not being able to construct an
additional 800 square foot building on the
property.
X.
NINTH CAUSE OF ACTION
(Breach of Fiduciary Duty – Rea)
68. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 67 herein as though fully set forth
in haec verba.
69. As the selling agent representing plaintiff in this
transaction, Rea owed a fiduciary duty to plaintiff in that Rea
owed to plaintiff a duty of the highest good faith and undivided
loyalty and service. This duty included, among other things, a
duty to conduct a reasonably competent visual inspection of the
property, inquire as to any conditions that would materially
affect the desirability or value of the property to plaintiff
and disclose to plaintiff all facts that are sufficiently
material to affect the value or desirability of the property to
plaintiff. In addition, Rea had a duty to act in the best
interests of plaintiff at all times during the negotiations and
purchase by plaintiff of the Blanchard property.
70. Rea breached his fiduciary duty to plaintiff in that he
failed to conduct a reasonably competent visual inspection of
the property, failed to inquire as to any conditions that would
materially affect the desirability or value of the property to
plaintiff and failed to disclose to plaintiff all facts that are
sufficiently material to affect the value or desirability of the
property to plaintiff.
71. Plaintiff relied on Rea as the source of information about
the property, particularly as to whether or not the property
could be further improved with a swimming pool and additional
800 square foot outbuilding. Had Rea not breached his fiduciary
duty to plaintiff and correctly advised plaintiff of the
conditions affecting the ability to construct a swimming pool
and additional 800 square foot outbuilding, plaintiff would not
have purchased the Blanchard property.
72. As a result of Rea’s breach of his fiduciary duty, plaintiff
has suffered damages in that he overpaid for the property,
incurred unanticipated costs in replacing a large part of his
driveway and lost future value in not being able to construct an
additional 800 square foot building on the property.
XI.
TENTH CAUSE OF ACTION
(Breach of the Covenant of Good Faith and Fair Dealing – Rea)
73. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 72 herein as though fully set forth
in haec verba.
74. At the time plaintiff hired Rea to act as his representative
for the purchase of a residential real property, there was
created an implied covenant of good faith and fair dealing that
Rea would act at all times in the best interests of plaintiff and
would not do anything that would adversely affect plaintiff’s
purpose in seeking to purchase a residential real estate such as
the Blanchard property. The implied covenant of good faith and
fair dealing required Rea to act with the highest good faith and
undivided loyalty and service to plaintiff.
75. The implied covenant of good faith and fair dealing required
Rea to conduct a reasonably competent visual inspection of the
property, inquire as to any conditions that would materially
affect the desirability or value of the property to plaintiff and
disclose to plaintiff all facts that are sufficiently material to
affect the value or desirability of the property to plaintiff.
76. Rea breached the implied covenant of good faith and fair
dealing in that he failed to conduct a reasonably competent
visual inspection of the property, failed to inquire as to any
conditions that would materially affect the desirability or
value of the property to plaintiff an failed to disclose to
plaintiff all facts that are sufficiently material to affect
the value or desirability of the property to plaintiff.
77. As a result of Rea’s breach of the implied covenant of
good faith and fair dealing, plaintiff suffered damages in that
he overpaid for the property, incurred unanticipated costs in
replacing a large part of his driveway and lost future value in
not being able to construct an additional 800 square foot
outbuilding on the property.
XII.
ELEVENTH CAUSE OF ACTION
(Fraud – Coldwell Banker)
78. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 77 and 21 through 25 herein as
though fully set forth in haec verba.
79. At all relevant times Kagel acted with the full knowledge
and authority of Coldwell Banker. Accordingly, Kagel’s actions
and omissions are directly attributable to Coldwell Banker.
80. By Kagel’s fraudulent representations and omissions, Coldwell
Banker intended for plaintiff to rely on them so that it could
profit by receiving a commission on the sale. Coldwell Banker,
through Kagel, made these fraudulent representations knowing they
were false and with an intent to deceive plaintiff for her own
gain. Such conduct on the part of Coldwell Banker is despicable
and rises to the level of oppressive in that it took advantage of
its superior knowledge of the Blanchard property in order that it
would receive a commission based on a percentage of the sale
price.
XIII.
TWELFTH CAUSE OF ACTION
(Intentional Failure to Disclose Material Fact – Coldwell Banker)
81. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 80 and 27 through 31 herein as
though fully set forth in haec verba.
82. By Kagel’s intentional failure to disclose material facts,
Coldwell Banker intended for plaintiff to rely on them so that
it could profit by receiving a commission on the sale. Coldwell
Banker, through Kagel, made these fraudulent representations
knowing they were false and with an intent to deceive plaintiff
for her own gain. Such conduct on the part of Coldwell Banker
is despicable and rises to the level of oppressive in that it
took advantage of its superior knowledge of the Blanchard
property in order that it would receive a commission based on a
percentage of the sale price.
XIV.
THIRTEENTH CAUSE OF ACTION
(Negligent Failure to Disclose Material Fact – Coldwell Banker)
83. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 82, 33 through 38 and 58 through
60 herein as though fully set forth in haec verba
84. As the broker for Kagel and Rea, Coldwell Banker is directly
liable for the negligent acts and omissions committed by Kagel
and Rea in their representation of Stonehenge and plaintiff,
respectively.
XV.
FOURTEENTH CAUSE OF ACTION
(Good Faith and Fair Dealing – Coldwell Banker)
85. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 84, and 74 through 77 herein as
though fully set forth in haec verba.
86. The implied covenant of good faith and fair dealing applied
as well to Coldwell Banker as it did to Rea. Rea’s breach of
the covenant of good faith and fair dealing is directly
attributable to Coldwell Banker in that Rea acted at all relevant
times in the course and scope of his relationship with Coldwell
Banker and was fully authorized by Coldwell Banker to perform all
of his acts as plaintiff’s representative for the purchase of the
Blanchard property.
XVI.
FIFTEENTH CAUSE OF ACTION
(Fraud – Stonehenge)
87. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 87 herein as though fully set forth
in haec verba.
88. Stonehenge was the seller of the Blanchard property. As
such, it acted at all relevant times through its principal
O’Brien.
89. During the course of negotiations for the purchase by
plaintiff of the Blanchard property, Stonehenge made certain
material representations to plaintiff for the purpose of having
plaintiff rely on said representations. Stonehenge advised
plaintiff that the Blanchard property contained a residence that
had fiber optic cabling, had 5300 square feet and could be
further improved with the addition of a swimming pool and
additional 800 square foot outbuilding. At all relevant times
these representations were false and Stonehenge knew them to be
false.
90. Stonehenge made these representations with the specific
intent that plaintiff rely on them.
91. Plaintiff relied on these misrepresentations, to his
detriment, in making his decision to pay $3,250,000 for the
Blanchard property.
92. As a result of Stonehenge’s fraudulent misrepresentations,
plaintiff has suffered damages in that he overpaid for the
property, incurred unanticipated costs in replacing a large part
of his driveway and lost future value in not being able to
construct an additional 800 square foot building on the property.
XVII.
SIXTEENTH CAUSE OF ACTION
(Intentional Failure to Disclose Material Fact - Stonehenge)
93. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 92 herein as though fully set forth
in haec verba.
94. The fiber optic cabling, 5300 square feet in the residence,
and the ability to add a swimming pool and 800 square foot
outbuilding were all material facts, that is, they materially
affected the value and desirability of the Blanchard property.
Stonehenge knew of the existence of these material facts and
intentionally did not disclose them to plaintiff.
95. Stonehenge’s nondisclosure of these material facts was
intentional and was done with the intent to induce plaintiff to
purchase the Blanchard property.
96. As a result of Stonehenge’s intentional nondisclosure of
these material facts, plaintiff was induced to purchase the
Blanchard property and would not have done so if Stonehenge had
not made the intentional misrepresentations.
97. As a result of Stonehenge’s intentional nondisclosure of
these material facts plaintiff has suffered damages in that he
overpaid for the property, incurred unanticipated costs in
replacing a large part of his driveway and lost future value in
not being able to construct an additional 800 square foot
outbuilding on the property.
98. In failing to disclose these material facts to plaintiff,
Stonehenge intended for him to rely on them so that it could
profit from the sale of the Blanchard property. It failed to
disclose these material facts with an intent to deceive
plaintiff for its own gain. Such conduct on the part of
Stonehenge is despicable and rises to the level of oppressive
in that it took advantage of its superior knowledge of the
Blanchard property in order that it would benefit financially in
the sale of the Blanchard property to plaintiff.
XVIII.
SEVENTEENTH CAUSE OF ACTION
(Negligent Failure to Disclose Material Fact – Stonehenge)
99. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 98 herein as though fully set forth
in haec verba.
100. As the seller of residential real estate, Stonehenge had a
duty to conduct a reasonably competent visual inspection of the
property and disclose to plaintiff all facts that are
sufficiently material to affect the value or desirability of the
Blanchard property.
101. Stonehenge breached this duty in that it negligently failed
to disclose any of these material facts to plaintiff and failed
to conduct a reasonably competent and diligent visual inspection
of the Blanchard property.
102. Plaintiff would not have purchased the Blanchard property
had Stonehenge not failed to disclose these material facts.
103. As a result of Stonehenge’s negligent failure to disclose
material facts to plaintiff, plaintiff suffered damages in that
he overpaid for the property, incurred unanticipated costs in
replacing a large part of his driveway and lost future value in
not being able to construct an additional 800 square foot
outbuilding on the property.
XIX.
EIGHTEENTH CAUSE OF ACTION
(Breach of the Covenant of Good Faith and Fair Dealing -
Stonehenge)
104. Plaintiff realleges and incorporates the allegations set
forth in paragraphs 1 through 103 herein as though fully set
forth in haec verba.
105. At the time Stonehenge entered into the contract with
plaintiff for the sale of the Blanchard property to plaintiff,
there existed an implied covenant of good faith and fair dealing
that Stonehenge would not do anything to adversely affect
plaintiff’s ability to receive the benefit of the contract he had
entered into with Stonehenge.
106. The implied covenant of good faith and fair dealing required
Stonehenge to conduct a reasonably competent visual inspection of
the property and disclose to plaintiff all facts that were
sufficiently material to affect the value or desirability of the
property to plaintiff.
107. Stonehenge breached the implied covenant of good faith and
fair dealing in that it failed to conduct a reasonably competent
visual inspection of the property, failed to inquire as to any
conditions that would materially affect the desirability or value
of the property to plaintiff an failed to disclose to plaintiff
all facts that are sufficiently material to affect the value or
desirability of the property to plaintiff.
108. As a result of Stonehenge’s breach of the implied covenant
of good faith and fair dealing, plaintiff suffered damages in
that he overpaid for the property, incurred unanticipated costs
in replacing a large part of his driveway and lost future value
in not being able to construct an additional 800 square foot
building on the property.
WHEREFORE, plaintiff prays for relief as set forth below:
ON THE FIRST CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE SECOND CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE THIRD CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE FOURTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE FIFTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE SIXTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE SEVENTH CAUSE OF ACTION:
1. For damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE EIGHTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE NINTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE TENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE ELEVENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE TWELFTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE THIRTEENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises;
ON THE FOURTEENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises.
ON THE FIFTEENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises.
ON THE SIXTEENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For punitive and exemplary damages according to proof;
4. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises.
ON THE SEVENTEENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises.
ON THE EIGHTEENTH CAUSE OF ACTION:
1. For general and special damages according to proof;
2. For costs of suit incurred herein;
3. For attorney fees according to proof;
3. For other and further costs and expenses incurred herein
which the court may deem just and proper under the premises.
DATED: November ___, 2005 GREENE, CHAUVEL, DESCALSO & MINOLETTI
By: ______________________________
PAUL G. MINOLETTI
Attorneys for Plaintiff
RALPH SIMPSON
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