Professional Services Group, Inc. v. Raymond Altemose et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 130.00)

FACTS

The present action arises from an alleged contract to improve real property in Fairfield, Connecticut.   On July 20, 2009, the plaintiff, Professional Services Group, Inc., filed a three-count complaint.   The only count presently at issue is count one, which seeks to foreclose a mechanic's lien and alleges the following facts.

On or around May 3, 2006, the plaintiff entered into a written contract with the defendants Raymond Altemose and Debra Altemose who were at all relevant times the owners of property located at 43 Ann Street in Fairfield.   The contract required the plaintiff to furnish materials and render services for the construction of improvements to the property.   The plaintiff commenced work on or around May 3, 2006 and ceased work on May 28, 2008.   Despite full performance by the plaintiff, the owners did not pay the plaintiff $45,870 of the total amount owed.   Subsequently, on July 28, 2008, the plaintiff recorded a mechanic's lien encumbering the premises to secure the unpaid balance.   To date, that balance has not been paid.

The plaintiff has also named as a defendant ¹ in this action IndyMac Federal Bank, which allegedly claims an interest in the premises by virtue of a mortgage recorded on September 29, 2006 in the amount of $704,000.   While not identified as such in the complaint, IndyMac appears to be a subsequent encumbrancer under the facts alleged.   See General Statutes § 49–33(b) ( “the [mechanic's lien] takes precedence over any other encumbrance originating after the commencement of the services”).

On February 19, 2010, IndyMac filed an answer admitting its mortgage interest in the premises and raising three special defenses.²  Thereafter, on September 24, 2010, IndyMac filed a motion for summary judgment as to the first count ³ of the complaint on the ground that no genuine issue of material fact exists with respect to the plaintiff's failure to timely file its mechanic's lien in accordance with the ninety-day recording requirement in General Statutes § 49–34.⁴  In support of its motion, IndyMac filed a memorandum of law and various exhibits.⁵  In response, the plaintiff filed an objection, memorandum of law and affidavit of its corporate president, Dominic Paniccia, and several exhibits.⁶

DISCUSSION

“In any action, except administrative appeals ․ any party may move for a summary judgment at any time ․” Practice Book § 17–44.  “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law ․ Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party ․ In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ [O]nce the moving party has met its burden [of production] ․ the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue.”   (Citations omitted;  internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902 (2010).

IndyMac asserts that it is entitled to summary judgment because the owners of the premises did not consent to the May 27 work ⁷ performed by the plaintiff, and therefore, the mechanic's lien filed on July 28, 2008 was not within the ninety-day time period from the last date of work as required by § 49–34.   Although IndyMac acknowledges that the plaintiff performed work “on or about May 27, 2008,” it argues that the ninety days should be calculated from October 9, 2007, the last prior date the plaintiff performed work on the premises.   In addition, IndyMac maintains, “there is no evidence of any agreement between [the][p]laintiff and the owners” for the May 27 work to be done.

In support of its objection to the motion for summary judgment, the plaintiff counters that there exists genuine issues of material fact as to whether the owners sufficiently consented to the performance of the May 27 work, based on the specifics set forth in Paniccia's affidavit.   The plaintiff claims that it performed the May 27 work after receiving an emergency call from the town to fix a ruptured water main on the premises.   While conceding that it responded to the scene without contacting the owners and therefore did not obtain their “specific consent” to do the work, the plaintiff argues that it was obligated under its contract with the owners to repair the water main.   The plaintiff asserts that, as a consequence, “consent above and beyond the authorization within the [c]ontract was not necessary” to support the timely filing of the mechanic's lien.   In the alternative, the plaintiff maintains that the owners impliedly consented for the work to be done because “the [o]wners knew of the work required of the [p]laintiff to complete the construction” and the duty to “correct the situation” rested with the plaintiff alone.   The plaintiff also claims that the lien is valid because it did the work pursuant to its duty under the building permit to comply with all relevant town ordinances and regulations.

“The purpose of the mechanic's lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon ․ Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim.”  (Citations omitted;  internal quotation marks omitted;) H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981).  “The guidelines for interpreting mechanic's lien legislation are ․ well established ․ [I]ts provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials.”  (Internal quotation marks omitted.)   Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 375–76, 696 A.2d 326 (1997).

IndyMac claims that the ninety-day recording period must be computed from October 9, 2007.   Its argument is premised on § 49–33(a),⁸ under which “[t]hose who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories.   Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials.”  (Internal quotation marks omitted.)  Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984).   IndyMac asserts that because the owners did not consent, within the meaning of § 49–33(a), for the May 27 work to be performed, that work does not merit the protection of a mechanic's lien and therefore cannot serve as the cessation date for the purpose of commencing the recording period under § 49–34.

Our Supreme Court has narrowly defined “consent” in the context of § 49–33(a) as “a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor.”  (Internal quotation marks omitted.)  Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591, 620 A.2d 127 (1993).  “The mere granting of permission for work to be conducted on one's property has never been deemed sufficient to support a mechanic's lien against the property.”   Hall v. Peacock Fixture & Electric Co., supra, 193 Conn. 295;  see also Peck v. Brush, 90 Conn. 651, 654, 98 A. 561 (1916) (“to warrant a lien the services and material must be furnished either under an agreement with or by consent of the owner of the land, that is, by virtue of contract, either express or implied”).   Whether consent was provided within the meaning of § 49–33(a) is a “question of fact.”  Waterview Site Services, Inc. v. Pay Day, Inc., 125 Conn.App. 561, 566 (2010).

The burden on summary judgment to demonstrate the absence of a genuine issue of material fact rests with the movant.  Maltas v. Maltas, supra, 298 Conn. 365.   IndyMac, as the movant, does not demonstrate the absence of a genuine issue as to whether the owners agreed to be liable to the plaintiff for the May 27 work.   In support of its claim that no such agreement exists, IndyMac relies exclusively on the plaintiff's admission that the May 27 work “was not done with the owners' consent.” ⁹  This admission, however, does not indicate that the owners failed to consent, within the meaning of § 49–33(a), to the May 27 work.   The ordinary meaning of the word “consent,” as it is used in IndyMac's request for admission, is broader than its statutory counterpart.   See, e.g., Black's Law Dictionary (9th Ed.2009) (consent means “[a]greement, approval, or permission as to some act or purpose”).   Moreover, IndyMac, in derogation of its burden of production, does not adduce any evidence that there does not exist a contract, express or implied, under which the owners are liable to the plaintiff for the May 27 work.   Therefore, while the plaintiff's admission may show that the owners did not grant express permission for the plaintiff to do the work in question, it does not likewise demonstrate that the owners did not agree to be liable for it.   Additionally, the plaintiff's admission is qualified by its statement that the work performed was “of an emergency nature.”   This statement suggests that the plaintiff was unable to secure permission from the owners to perform the work due to exigent circumstances, and bolsters the inference that the meaning of “consent” in the admission does not equate to its meaning in the context of § 49–33(a).

A party's judicial admission is ordinarily “conclusive upon the party making it.”  (Internal quotation marks omitted.)  Pedersen v. Vahidy, 209 Conn. 510, 520, 552 A.2d 419 (1989);  see also Practice Book § 13–24(a).  “The statement relied on as a binding admission [however] must be clear, deliberate and unequivocal.”  National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004).   Given IndyMac's failure to produce any evidence contravening the existence of a contract under which the owners agreed to be liable for the May 27 work, and viewing the proffered evidence in the light most favorable to the plaintiff, IndyMac's submission of a vague, narrow admission is insufficient to satisfy its summary judgment burden of production.¹⁰  Since a genuine issue of material fact remains, IndyMac's motion for summary judgment is denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. The other defendant in this action is Panvest Corporation, a separate mortgagee..  FN1. The other defendant in this action is Panvest Corporation, a separate mortgagee.

FN2. The first special defense alleges that the plaintiff filed its mechanic's lien “more than ninety days after the last day on which work or materials were supplied to” the premises and claims the mechanic's lien is invalid under General Statutes § 49–34;  the second special defense alleges that the plaintiff misrepresented on its certificate of mechanic's lien the date it “last provided services or materials to” the premises;  the third special defense alleges that the plaintiff did not commence work on the premises until after IndyMac recorded its mortgage and therefore the mechanic's lien is not prior in right to IndyMac's mortgage..  FN2. The first special defense alleges that the plaintiff filed its mechanic's lien “more than ninety days after the last day on which work or materials were supplied to” the premises and claims the mechanic's lien is invalid under General Statutes § 49–34;  the second special defense alleges that the plaintiff misrepresented on its certificate of mechanic's lien the date it “last provided services or materials to” the premises;  the third special defense alleges that the plaintiff did not commence work on the premises until after IndyMac recorded its mortgage and therefore the mechanic's lien is not prior in right to IndyMac's mortgage.

FN3. Although IndyMac moves for summary judgment “on the plaintiff's complaint,” its supporting memorandum addresses only the claim to foreclose the mechanic's lien as alleged in the first count.   The memorandum does not address the breach of contract and quantum meruit claims in the second and third counts, respectively.  “[T]he interpretation of pleadings is always a question of law for the court ․” (Internal quotation marks omitted.)   BNY Western Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010).   Accordingly, the court construes IndyMac's motion as seeking summary judgment as to the first count only..  FN3. Although IndyMac moves for summary judgment “on the plaintiff's complaint,” its supporting memorandum addresses only the claim to foreclose the mechanic's lien as alleged in the first count.   The memorandum does not address the breach of contract and quantum meruit claims in the second and third counts, respectively.  “[T]he interpretation of pleadings is always a question of law for the court ․” (Internal quotation marks omitted.)   BNY Western Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010).   Accordingly, the court construes IndyMac's motion as seeking summary judgment as to the first count only.

FN4. Section 49–34 provides in relevant part:  “A mechanic's lien is not valid unless the person performing the services or furnishing the materials ․ within ninety days after he has ceased to do so, lodges with the town clerk ․ a certificate in writing, which shall be recorded by the town clerk ․”.  FN4. Section 49–34 provides in relevant part:  “A mechanic's lien is not valid unless the person performing the services or furnishing the materials ․ within ninety days after he has ceased to do so, lodges with the town clerk ․ a certificate in writing, which shall be recorded by the town clerk ․”

FN5. Attached as an exhibit is a copy of the plaintiff's responses to IndyMac's request for admissions admitting as true copies a certificate of a prior mechanic's lien filed by the plaintiff on November 26, 2007, encumbering the premises, the plaintiff's release of the November 26, 2007 mechanic's lien and a memorandum of decision granting Debra Altemose's motion to discharge the November 26, 2007 mechanic's lien due to the plaintiff's failure to comply with certain statutory notice and service of process requirements, see Altemose v. Professional Services Group, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5014532 (July 21, 2008, Arnold, J.) (46 Conn. L. Rptr. 43), and (5) a certificate of the July 28, 2008 mechanic's lien that is the subject of this action..  FN5. Attached as an exhibit is a copy of the plaintiff's responses to IndyMac's request for admissions admitting as true copies a certificate of a prior mechanic's lien filed by the plaintiff on November 26, 2007, encumbering the premises, the plaintiff's release of the November 26, 2007 mechanic's lien and a memorandum of decision granting Debra Altemose's motion to discharge the November 26, 2007 mechanic's lien due to the plaintiff's failure to comply with certain statutory notice and service of process requirements, see Altemose v. Professional Services Group, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5014532 (July 21, 2008, Arnold, J.) (46 Conn. L. Rptr. 43), and (5) a certificate of the July 28, 2008 mechanic's lien that is the subject of this action.

FN6. The plaintiff's exhibits include copies of (1) its new home contractor's license;  (2) a portion of the written contract between the plaintiff and the owners;  (3) the building permit for the premises;  and (4) a note purporting to show that the town of Fairfield contacted the plaintiff on May 27, 2008 and requested the plaintiff to correct a ruptured water main on the premises.   IndyMac has not challenged the admissibility of the plaintiff's exhibits..  FN6. The plaintiff's exhibits include copies of (1) its new home contractor's license;  (2) a portion of the written contract between the plaintiff and the owners;  (3) the building permit for the premises;  and (4) a note purporting to show that the town of Fairfield contacted the plaintiff on May 27, 2008 and requested the plaintiff to correct a ruptured water main on the premises.   IndyMac has not challenged the admissibility of the plaintiff's exhibits.

FN7. IndyMac claims that the unauthorized work was performed “on or about” May 27, 2008;  the plaintiff claims that it did the work “on or about May 27 and 28, 2010.”   For the purpose of clarity and consistency, this memorandum will refer to the work as the “May 27 work.”.  FN7. IndyMac claims that the unauthorized work was performed “on or about” May 27, 2008;  the plaintiff claims that it did the work “on or about May 27 and 28, 2010.”   For the purpose of clarity and consistency, this memorandum will refer to the work as the “May 27 work.”

FN8. Section 49–33(a) provides in relevant part:  “If any person has a claim for more than ten dollars for materials furnished or services rendered in the ․ improvement of any lot ․ and the claim is by virtue of an agreement with or by consent of the owner of the land ․ or of some person having authority from or rightfully acting for the owner ․ then the plot of land, is subject to the payment of the claim.”.  FN8. Section 49–33(a) provides in relevant part:  “If any person has a claim for more than ten dollars for materials furnished or services rendered in the ․ improvement of any lot ․ and the claim is by virtue of an agreement with or by consent of the owner of the land ․ or of some person having authority from or rightfully acting for the owner ․ then the plot of land, is subject to the payment of the claim.”

FN9. IndyMac requested the plaintiff to admit or deny the truth of the following statement:  “10.   The materials that were furnished and/or the services that were rendered on the Property on or about May 27, 2008 (the “New Work”) was not done with the consent of the owners of the Property.”   The plaintiff, in a response that it filed on September 1, 2010, answered:  “Admitted.   The materials furnished and/or services rendered were of an emergency nature.”.  FN9. IndyMac requested the plaintiff to admit or deny the truth of the following statement:  “10.   The materials that were furnished and/or the services that were rendered on the Property on or about May 27, 2008 (the “New Work”) was not done with the consent of the owners of the Property.”   The plaintiff, in a response that it filed on September 1, 2010, answered:  “Admitted.   The materials furnished and/or services rendered were of an emergency nature.”

FN10. Even though IndyMac failed to satisfy its burden of production, the court may nevertheless consider whether the plaintiff's evidence supports IndyMac's claim.   See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004) (“[a]lthough the defendants were not obligated to present documents in support of their objection to the plaintiff's motion [for summary judgment] ․ the trial court was entitled to consider whether the evidence that they chose to present supported the plaintiff's claim”).   In support of its objection, the plaintiff has submitted a copy of its contract with the owners.   Nothing in the contract demonstrates that the owners did not agree to be liable for the May 27 work.   On the contrary, the completion of “sewer connections, water connection, etc.” on the premises is expressly listed in the document as one of the tasks for which the owners contracted with the plaintiff to perform..  FN10. Even though IndyMac failed to satisfy its burden of production, the court may nevertheless consider whether the plaintiff's evidence supports IndyMac's claim.   See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004) (“[a]lthough the defendants were not obligated to present documents in support of their objection to the plaintiff's motion [for summary judgment] ․ the trial court was entitled to consider whether the evidence that they chose to present supported the plaintiff's claim”).   In support of its objection, the plaintiff has submitted a copy of its contract with the owners.   Nothing in the contract demonstrates that the owners did not agree to be liable for the May 27 work.   On the contrary, the completion of “sewer connections, water connection, etc.” on the premises is expressly listed in the document as one of the tasks for which the owners contracted with the plaintiff to perform.

Bellis, Barbara N., J.