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D'AMBROSIO v. COLONNADE COUNCIL

September 10, 1998

ALAN A. D'AMBROSIO, APPELLANT,
V.
THE COLONNADE COUNCIL OF UNIT OWNERS, ET AL., APPELLEES.



APPEAL FROM THE SUPERIOR COURT, ANN O'REGAN KEARY, J. [717 A2d Page 357]

Before Ruiz, Associate Judge, and Gallagher, Senior Judge and King, Associate Judge, Retired.[fn1] [fn1] Judge King was an Associate Judge of the Court at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1998.

The opinion of the court was delivered by: Ruiz, Associate Judge:

The appellant, Alan A. D'Ambrosio, sued Community Management Corporation (CMC) for negligence, and the Colonnade Council of Unit Owners (the Colonnade Council) for negligence, breach of contract and fraud, after a pipe behind a wall of his condominium unit at the Colonnade Condominium froze and burst, causing damage to his property. CMC *fn1 and the Colonnade Council jointly responded to D'Ambrosio's complaint with an answer and a motion for summary judgment on the negligence and breach of contract claims. After conducting a hearing on that motion, *fn1 and twice granting D'Ambrosio's motions to amend his opposition to CMC's and the Colonnade Council's motion for summary judgment the trial court granted summary judgment on the negligence and breach of contract claims. The trial court also dismissed the fraud claim for failure to state a claim under Super.Ct.Civ.R. 12(b)(6) and 9(b). D'Ambrosio appeals contending that summary judgment in favor of CMC and the Colonnade Council was improperly granted because material issues remained in dispute, and that his complaint for fraud stated an adequate claim and was wrongly dismissed. We find no error in the grant of summary judgment on the negligence and breach of contract claims. We conclude, however, that the trial court improperly dismissed D'Ambrosio's fraud claim, and therefore reverse and remand for further proceedings consistent with this opinion.

I.

The trial court based its grant of summary judgment for the Colonnade Council on the unambiguous language of the Colonnade Council's Bylaws, which state in pertinent part,

The [Colonnade] Council shall not be liable for any failure of water supply or other services to be obtained by the council or paid for out of the common expense funds, or for injury or damage to person or property caused by the elements or from any pipe, drain, conduit, appliance or equipment .

(Emphasis added by trial court). In granting summary judgment in favor of sCMC, the Colonnade Condominium's managing agent, the trial court explained that D'Ambrosio failed not only to present evidence of CMC's responsibility for pipe maintenance sufficient to create a dispute about a material fact, but moreover to specify any negligent acts or omissions committed by CMC. Finally, the trial court dismissed D'Ambrosio's claim that he was fraudulently induced to purchase the apartment when representatives of the Colonnade Council deliberately misinformed him about the condition of the building. In paragraph 17 of his complaint, D'Ambrosio contended:

Prior to purchasing Penthouse Unit 6 in the Colonnade, Plaintiff inquired of representatives of Defendant The Colonnade concerning the condition of the building and Penthouse Unit 6. He was advised that there were "no problems" when in fact an incident similar to that which befell the Unit in 1994 had occurred elsewhere in the building in 1991, and when in fact their [sic] existed plumbing problems with respect to the tear valves and systems as well as significant ceiling leaks in the pent-houses [717 A2d Page 358]

and hallways. Disclosure of these conditions was not made to Plaintiff when he inquired and this nondisclosure was fraudulent under the circumstances.

Paragraph 18 continued:

Had truthful disclosures been made to Plaintiff he would not have acquired Penthouse Unit # 6, would not have sustained the damages to the Unit, and would not have incurred the expenses of owning, maintaining, and rehabilitating the Unit.

The trial court concluded that D'Ambrosio simply failed to allege the required particularities with regard to at least three of the essential elements of fraud."

II

This court reviews a trial court's grant of summary judgment according to the same standard applied by the trial court, after an independent review of the record. See Holland v. ...


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