Opinion
CV116004987S
05-24-2016
Milone & Macbroom, Inc. v. Winchester Estates, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#119)
JOHN W. PICKARD, J.
The defendant, Tissa Funding Corporation, has filed a motion for summary judgment arguing that there are no genuine issues of material fact and it is entitled to judgment as a matter of law because the mechanic's lien recorded by the plaintiff is invalid. The plaintiff, Milone & Macbroom, opposes summary judgment arguing that there are genuine issues of material fact concerning whether the mechanic's lien is valid. For the reasons stated below, the court grants the motion for summary judgment.
PROCEDURAL HISTORY
On August 3, 2010, the plaintiff, Milone & Macbroom, Inc., filed a complaint against the defendants, Tissa Funding Corporation (Tissa), Winchester's Highland Ridge Estates, LLC (Highland Ridge), Anthony Silano, Aurora Rosa, Silano Investment Corporation, TD Bank, NA, Capital Source Finance, LLC (Capital Source), and Tissa CT Corp., seeking foreclosure of a mechanic's lien on property the plaintiff alleges is owned by Highland Ridge for materials furnished and services performed in relation to the property by agreements with Defendants, Anthony Silano, Aurora Rosa, and Silano Investment Corporation, and Highland Ridge. The plaintiff further alleges that the remaining defendants hold encumbrances on the property that are subsequent in right to the plaintiff's mechanic's lien.
On April 24, 2014, Tissa filed a motion for summary judgment (#119) and a supporting memorandum (#120) with exhibits. On April 28, 2014, the plaintiff filed an amended complaint (#123). On April 20, 2015, it filed a supplemental motion for summary judgment (#150), a memorandum in support of its motion (#151), and supporting exhibits. Tissa argues that there are no genuine issues of material fact and it is entitled to judgment as a matter of law because the plaintiff's alleged mechanic's lien is invalid because Highland Ridge was not the owner or holder of an equitable interest in the property at the time that the plaintiff commenced its work and the owner did not consent to the property being subject to a mechanic's lien.
On June 11, 2015, the plaintiff filed a memorandum in opposition to Tissa's motion for summary judgment (#154). The plaintiff included supporting exhibits with the memorandum. On July 2, 2015, Tissa filed a memorandum in reply to the plaintiff's opposition memorandum (#157).
The matter was heard by the court at short calendar on December 7, 2015. At short calendar, the court granted the parties permission to file supplemental memoranda and ordered that all memoranda be filed by January 4, 2016. On December 18, 2015, the plaintiff filed a supplemental memorandum (#168) with supporting exhibits. On January 4, 2016, Tissa filed a supplemental memorandum (#169) with supporting exhibits. On April 29, 2016, the parties agreed in writing to extend the time for the court to render a decision until June 15, 2016.
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
" [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
In the present case, Tissa argues that it is entitled to summary judgment because there are no genuine issues of material fact and, as a matter of law, the plaintiff does not have a valid mechanic's lien because at the time the plaintiff commenced work on the property it did not have the consent of the owner of the property or someone with sufficient equitable interest in the property. Specifically, it argues that on August 16, 2004, the date listed on the mechanic's lien as the date when the plaintiff commenced work related to the property, the owners of the property were Thomas Flaherty, and several others. Tissa argues that there is no evidence that the Flaherty group of owners gave consent to the plaintiff's work on the property. Highland Ridge certainly did not give its consent because it did not obtain title to the property until July 19, 2007 in warranty deeds from Thomas A. Flaherty and the other owners. Not only did Highland Ridge not have title to the property on August 16, 2004, there is no evidence that it had an equitable interest in the property at that time. Indeed, it was not even formed until October 2005.
" In this state, a 'mechanic's lien is a creature of statute and gives a right of action which did not exist at common law . . . 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 . . . Moreover, [t]he guidelines for interpreting mechanic's lien legislation are . . . well established. Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.' . . . F.B. Mattson Co. v. Tarte, 247 Conn. 234, 237, 719 A.2d 1158 (1998)." Intercity Development, LLC v. Andrade, 286 Conn. 177, 183-84, 942 A.2d 1028 (2008).
General Statutes § 49-33(a) provides: " If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim."
" Our cases clearly state that a [mechanic's] lien is invalid unless the party requesting the work is the owner of the property or has an equitable interest in that property." New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 617, 706 A.2d 465 (1998). " [Our Supreme Court] has stated that '[l]ienors 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.' Seaman v. Climate Control Corp., 181 Conn. 592, 595, 436 A.2d 271 (1980). '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 . . . [Our Supreme Court has] also recognized long ago that a landowner does not subject his property to a mechanic's lien by simply allowing work to be done to it.' . . . Hall v. Peacock Fixture & Eleical Co., 193 Conn. 290, 295, 475 A.2d 1100 (1984)." (Footnote omitted.) Id., 618. " The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for materials or labor. It is not necessary that the materials shall be furnished under an express contract, but is enough if they are furnished with the consent of the owner of the land, so that there is an implied contract by him to pay for them." Avery v. Smith, 96 Conn. 223, 228, 113 A. 313 (1921).
" As a general rule, a lien on after-acquired property is, therefore, invalid. Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., [224 Conn. 580, 583-84, 620 A.2d 127 (1993)]. Certain equitable interests arising out of a contract for sale of land may, however, support a mechanic's lien on after-acquired property. See, e.g. Hannan v. Handy, 104 Conn. 653, 658, 134 A. 71 (1926) (equitable interest sufficient to give rise to mechanic's lien may arise when contract for sale provides title will not pass until completion of building on vendor's land); Hillhouse v. Pratt, 74 Conn. 113, 117, 49 A. 905 (1901) (contract for sale of land requiring vendee to commence construction of house prior to passage of title creates sufficient equitable interest in vendee to permit mechanic's lien on property)." Id., 618-19.
" [I]n order for the buyer under a contract of purchase of real estate to have a sufficient equitable interest in the property to support a mechanic's lien in favor of the buyer's supplier of materials [or services], the provision in the contract providing for the work on the property must be in some sense for the interest or at the behest of the seller of the property. The provision must require, as a condition of the seller's obligation under the contract, that the buyer perform the work at issue. The rationale underlying this principle is that the buyer under those circumstances is improving the land, not only for the buyer's own benefit, but also for the benefit of the record owner. That rationale is what supports the conclusion that the seller has transferred to the buyer, before the buyer takes title to the property, an equitable interest in the property sufficient to support a mechanic's lien in favor of the buyer's supplier of materials [or services], that attaches to the estate of the buyer after the buyer takes title thereto." (Footnote omitted.) Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., supra, 224 Conn. 588-89.
" [A]n option contract does not, by itself, create an obligation in the buyer to perform services upon the property as a condition of sale. It merely binds the vendor to keep his or her offer open for a stated time in exchange for certain consideration. Patterson v. Farmington Street Railway Co., 76 Conn. 628, 642, 57 A. 853 (1904) (option contract concerns sale of power to withdraw offer but does not affect other 'incidents to absolute ownership')." New England Savings Bank v. Meadow Lakes Realty Co., supra, 243 Conn. 617 n.17.
" [Our Supreme Court has] in the past 'acknowledge[d] the realties of the manner in which the construction work operates' in interpreting § 49-33. Thompson & Peck, Inc. v. Division Drywall, Inc., [241 Conn. 370, 381, 696 A.2d 326 (1997)]. Although we recognize that practical considerations inherent in real estate development may necessitate commencing surveying and engineering services prior to the acquisition of the property, we cannot presume from the sparse legislative history that the amendment [including such services within the scope of work eligible for a mechanic's lien] abrogated the longstanding requirement that the contracting property owner hold title to or have an equitable interest in the land at the time that the work commenced." Id., 621-22. " [T]herefore . . . our decision in Centerbrook, Architects & Planners applies to 'the site development or subdivision of [a] plot of land . . .' General Statutes § 49-33(a)." Id., 622.
In Centerbrook, Architects & Planners, our Supreme Court held that a contract that conditioned the buyer's duty to purchase the property on its ability to acquire zoning permits for its intended use of the property did not create an equitable interest sufficient to subject the property to a mechanic's lien because the zoning permit was for the benefit of the buyer and not the seller and the seller's permission for the buyer to contract with the plaintiff for work related to the property did not constitute consent to subject the property to a mechanic's lien. Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., supra, 224 Conn. 580. The court noted that " if the permits had not been secured, it would have been [the buyer], and not [the seller], that would have had the choice of either waiving the condition and closing on the property or terminating the contract." Id., 589-90. In New England Savings Bank, the court noted that the trial court found that the seller " did not consent to the work that was performed" and " [e]ven if [the seller] had given permission for [the lienholder] to begin work or was simply aware of and acquiesced to it, this would not constitute sufficient consent to support the lien." New England Savings Bank v. Meadow Lakes Realty Co., supra, 243 Conn. 622. The court went on to note that " [s]ignificantly, the trial court made no finding that there had been a contract for sale, similar to those in Hillhouse v. Pratt, [74 Conn. 113, 114, 49 A. 905 (1901), or Seipold v. Gibbud, [110 Conn. 392, 393, 148 A. 328 (1930)], between [the buyer] and [the seller] requiring [the buyer] to survey or subdivide the property prior to the transfer of title and [the lienholder] does not argue that such a contract existed. It is, therefore, clear that [the lienholder's] claim for a lien for services performed on after-acquired property is improper and that, consequently, the lien is invalid." Id., 622-23. Both Hillhouse and Seipold involved sale agreements that required the buyer to commence work on the land prior to the passage of title.
The cases cited above dictate the following findings:
1. The Flaherty group did not " consent" to the plaintiff's work as that word is used in the cases. The affidavits of Anthony Silano and Aurora Rosa merely say that the Flaherty owners " authorized me to start work on preliminary site designs for the properties and I explained to them this would require engineers to enter upon this property and conduct surveying and mapping." This statement is hearsay which would not be admissible at trial. But, more importantly, the affidavits make clear that Silano and Rosa, not Flaherty, were engaging the plaintiff to determine the viability of their development of the property. Flaherty's " authorization" was a mere granting of permission to work without evidence of an implied contract by Flaherty to pay for the work.
" [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied 280 Conn. 917, 908 A.2d 538 (2006).
2. As to Highland Ridge, the property is " after-acquired property" which is not subject to the plaintiff's lien.
3. Highland Ridge did not have an equitable interest in the property which would exempt it from the " after-acquired property" rule. The plaintiff's argument that Highland Ridge had an equitable interest in the property is based on part of an alleged written contract of sale between the Flaherty group and Anthony Silano. This contract is not complete and there are no signatures on it. It was not provided to the court until the plaintiff's supplemental memorandum of law was filed, is not certified, and is not identified in any affidavit supporting the opposition to the motion for summary judgment. The contract would be inadmissible in evidence and cannot be used to support an equitable interest argument.
The court must also briefly address the plaintiff's argument that the court may reform the mechanic's lien to reflect a service commencement date after Highland Ridge acquired title to the property, thus limiting the mechanic's lien to work undertaken after that date. In support of the conclusion that a court may invalidate a mechanic's lien in cases of after-acquired titles, our Supreme Court has noted " that § 49-33(b) explicitly provides that a lien has precedence over claims arising after the date of commencement of services. There is nothing in the text of the statute to indicate that a court is free to choose a different priority date or to otherwise reform the lien in accordance with existing law. While innocent clerical errors or misstatements that do not prejudice the opposing party are not necessarily fatal to a lien . . . [the lienholder] has not argued that the [commencement date on the mechanic's lien] was an error, clerical or otherwise." New England Savings Bank v. Meadow Lakes Realty Co., supra, 243 Conn. 620-21 n.20. In the present case, having found that the mechanic's lien is invalid because the plaintiff lacked valid consent on August 16, 2004, and absent any argument that use of a date prior to the transfer of title to Winchester Estates was an innocent error, the court may not reform the mechanic's lien to a date that would render the mechanic's lien valid.
The plaintiff argues that any reformation of the mechanic's lien to correct the commencement date of work to one after Highland Ridge acquired title to the property would be permissible because it would not prejudice the moving defendants. A finding of lack of prejudice is necessary before the court may correct an innocent clerical error or misstatement. New England Savings Bank v. Meadow Lakes Realty Co., supra, 243 Conn. 621 n.20 (" [I]nnocent clerical errors or misstatements that do not prejudice the opposing party are not necessarily fatal to a lien"). When the reformation sought is not the result of such innocent error, whether or not the opposing parties would be prejudiced is not relevant to the issue of whether the court may reform the mechanic's lien to make an otherwise invalid lien valid. Id. Therefore, having found that the lien is invalid due to the fact that the plaintiff acquired title after the commencement of services, and the date listed as the commencement date does not reflect an innocent error, the court need not determine whether reformation of the mechanic's lien to reflect a latter commencement date would prejudice the moving defendants.
For the foregoing reasons, the court finds that the mechanic's lien recorded by the plaintiff against Highland Ridge is invalid. Therefore, the court grants Tissa's motion for summary judgment.