Opinion
No. 560889
August 5, 2003
MEMORANDUM OF DECISION
FACTS
On March 21, 2001, the plaintiffs, Daniel Sobireski and David Sobireski, filed a one-count complaint against the defendants, Douglas Domack and Benchmark Niantic Senior Housing, LLC ("Benchmark"), to foreclose on a mechanics' lien placed on property located in Niantic. On April 6, 2001, the plaintiffs filed a motion for default for failure to appear against the defendant, Benchmark, which was granted by the clerk on April 26, 2001. On October 2, 2001, the plaintiffs filed a motion to substitute party defendant, which was granted by the clerk on October 15, 2001. Accompanying the motion to substitute was an amended complaint, which substituted the defendant Domack Roofing, LLC, for Domack. Thereafter, on November 26, 2001, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact as to the plaintiffs' waiver of the right to file a mechanics' lien, and that therefore, the defendant is entitled to judgment as a matter of law.
Any further reference to "the defendant" is intended to refer to Domack Roofing, LLC, as Benchmark is not a party to these motions.
The plaintiffs allege the following facts in their complaint. On November 8, 2000, the defendant owed the plaintiffs the sum of $12,400 pursuant to a contract signed and dated August 11, 2000. On that date, the plaintiffs issued a lien against the defendant for the amount owed on the property of Crescent Point at Niantic Assisted Living, owned by the defendant Benchmark. The complaint alleges that the lien is now in default by virtue of nonpayment, and the plaintiffs seek to foreclose on the property.
DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[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). "[Summary judgment] is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
"The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial." (Citations omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
The defendant argues in his motion for summary judgment that there is no genuine issue of material fact and he is entitled to judgment as a matter of law on the ground that the plaintiffs have waived their right to file a mechanics' lien against the property. In response, the plaintiffs argue that a finding that the plaintiffs have waived their right to file such a lien is contrary to public policy, and contend that courts have previously refused to honor contract provisions when "the statutory rights of one party are effectively erased by that provision." Johnson Acoustics, Inc. v. P.J. Carlin Construction Co., 29 Conn. Sup. 457, 459, 292 A.2d 273 (1971).
The plaintiffs' reliance on Johnson Acoustics, Inc. v. P.J. Carlin Construction Company, supra, 29 Conn. Sup. 457, is misplaced. That case dealt with conflicting provisions in two documents: a contract between the plaintiff and defendant; and a bond that was signed by the defendant, and required under General Statutes § 49-41 for the particular work in which the defendant was engaged. The plaintiff alleged that it was entitled to payment for work performed under the contract between the parties, and filed a claim on the bond signed by the defendant. Id., 458. However, the documents each contained provisions designating different, exclusive jurisdictions in which the plaintiff could bring suit. Id., 457-58. The court found that the contradiction between the terms of the bond and the terms of the contract "seriously impairs in fact, destroys — plaintiff's ability to pursue his rights under the statutory bond required by law in this case." Id., 461. The court held that the provision contained in the contract was invalid and enforced the venue provision contained in the statutorily required bond.
"In determining the meaning and effect of the controverted language in the [agreement], the inquiry must focus on the intention expressed in the [agreement] and not on what intention existed in the minds of the parties . . . When the plain meaning and intent of the language is clear, a clause in a written [agreement] cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language." (Citation omitted; internal quotation marks omitted.) Snydergeneral Corp. v. Lee Parcel 6 Associates Ltd. Partnership, 43 Conn. App. 32, 36, 681 A.2d 1008 (1996). "While a determination about a party's intent to waive his rights ordinarily poses a question of fact, clear and definitive contract language can establish waiver as a matter of law." Connecticut National Bank v. Douglas, 221 Conn. 530, 545, 606 A.2d 684 (1992).
"[O]rdinarily, whether the plaintiff waived his right to a mechanic's lien is a question of fact to be determined by the trier . . . Where, however, there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law." (Citations omitted.) Pero Building Co. v. Smith, 6 Conn. App. 180, 184, 504 A.2d 524 (1986). The contract at issue in Pero Building Co. v. Smith contained a clause which stated: "The [contractor] agrees that no mechanic's claims or liens will be filed or maintained by [contractor] against the dwelling or other improvements to be constructed or against the [property]." Id. The court there concluded that "because the language of the agreement between the parties was clear and definitive and because the intention of the parties was unmistakable, the trial court could not reasonably have construed such language as other than a voluntary and an absolute waiver of the plaintiff's statutory right to file a mechanics lien on the . . . property." Id., 184-85.
The contract between the parties in the present case contains language that is substantially similar to the language at issue in Pero Building Co. v. Smith. The contract states that "[t]he [t]rade [s]ubcontractor irrevocable waives any right to file a [m]echanic's [l]ien or to bring any action against the [o]wner or [c]onstruction [m]anager." Defendants' memorandum of law, exhibit A. As was the case in Pero Building Co. v. Smith, the language of the agreement is clear, and this court cannot construe this language to be anything other than an absolute waiver of the plaintiff's right to file a mechanic's lien against the defendants.
CONCLUSION
The plaintiffs waived their right to file a mechanic's lien by virtue of unambiguous terms contained in the contract between the parties; therefore, the defendants' motion for summary judgment is granted.
Martin, J.