Opinion
CV176070907S
09-13-2018
Anthony SURACI v. Ellsworth EVARTS et al.
UNPUBLISHED OPINION
File Date: September 12, 2018
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Anthony Suraci (plaintiff) commenced this foreclosure action, by service of writ, summons and complaint against the defendants, self-represented parties, Ellsworth Evarts and Lisa Evarts (defendants). The return date was June 20, 2017, and the complaint dated May 25, 2017 was returned to court on June 1, 2017 and alleges the following facts. The plaintiff is a licensed electrician in the state of Connecticut. The defendants at all relevant times were residents and property owners of 479 Warpas Road, Madison, Connecticut (property). The plaintiff alleges that he rendered services and furnished materials in the repair of the buildings and improvements on the defendants’ property pursuant to an agreement with the defendants and with their consent. The plaintiff alleges that he installed outlets, switches, wiring and performed other electrical work on the property. The value of the services rendered and materials furnished was $14,930. The plaintiff was paid $3,000. On or about June 1, 2016, the plaintiff, in order to secure the balance due and owing to him, caused to be filed a duly sworn certificate of mechanic’s lien, which was recorded in the Madison land records. On June 1, 2016, the plaintiff served the mechanic’s lien on the defendants. Count one of the complaint seeks foreclosure of the mechanic’s lien, plus attorneys fees and costs. Count two is a breach of contract; count three is unjust enrichment and count four is promissory estoppel.
On July 27, 2017, the defendants filed an answer denying the plaintiff’s allegations and alleged in their special defenses that no contract was supplied by the plaintiff, no materials were purchased by the plaintiff and that the plaintiff was paid in full for all work completed by the plaintiff. A court trial was held on this matter on April 4, 2018. The court ordered the parties to submit proposed findings of fact and conclusions of law by May 21, 2018. The plaintiff submitted proposed findings of fact and conclusions of law on May 21, 2018. The defendants did not file any post-trial submissions.
STANDARD OF REVIEW
"It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005).
"The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). "[T]he trier of fact’s assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- all, none, or some- of a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
BURDEN OF PROOF
The burden of proof is on the plaintiff to prove all of the essential allegations of his complaint and on the defendant to prove all of the essential elements of their affirmative defenses. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). "While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it ... The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of his cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, "[a] special Defense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658 (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendants must prove all of the essential elements of their affirmative defense by a fair preponderance of the evidence.
The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). "The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
FINDINGS OF FACT
After reviewing all the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences, and taking into account the credibility of witnesses, the court finds that the following facts have been established by a fair preponderance of the evidence. The plaintiff who is an electrician, licensed in the state of Connecticut was hired by the defendants to perform electrical services at property owned by the defendants, and located at 479 Warpas Road, Madison, Connecticut. As part of the agreement, the defendants were to pay for the materials and did in fact pay for the materials. The defendant, Lisa Evarts provided drawings of what needed to be done on the first and second floors of the property, including a planned addition. The plaintiff did provide electrical services in accordance with drawings provided by Evarts. The plaintiff claims that he provided additional work that was not depicted in the drawings to which the defendants agreed. The credible evidence establishes that the parties entered into an enforceable oral contract in December 2015 for electrical work to be performed by the plaintiff in accordance with drawings submitted by Lisa Evarts. The contract price based upon the credible evidence was for $7000. The defendants have paid $3,000.
In April or May 2016, four or five months after the plaintiff agreed upon the $7,000 contract price, the plaintiff prepared a list of the electrical services he provided and his estimate of the value of those services. Siverio Finelli, plaintiff’s expert testified that the plaintiff’s values were reasonable. The plaintiff claims that he performed additional work on the defendants’ property, and that the value of the work he performed, including the extra work, is $13,593. The plaintiff claims he is therefore owed $10,593. Although the plaintiff does not dispute that the original agreed-upon contract price was for $7,000, the plaintiff is essentially claiming that the original contract entered into for $7000 was modified, and that the defendants agreed to the additional work he performed. The defendants dispute the amount the plaintiff claims they owe. The defendants claim that they entered into an enforceable oral agreement with the plaintiff for electrical services to be performed on their home for $7,000. The defendants do not dispute that the amount owed to the plaintiff under the oral contract is $4,000. The dispute arises as to the scope of the work. The plaintiff testified that the scope of the work increased beyond what was depicted in the drawings provided by the defendant Lisa Evarts. The defendants testified that the scope of the work included all of the work needed at the property and that the parties agreed that defendants would pay the plaintiff $7,000 for his services. The defendant, Ellworth Evarts testified that the work was not completed and that they had to pay another company, Calabrese Electric $4,800 to complete the work. The defendants did not put forth any evidence of invoices or receipts documenting payment for work performed by Calabrese. Further, the plaintiff’s electrical work was sufficient to pass the town of Madison’s first inspection, referred to as "the roughing."
On June 1, 2016, the plaintiff recorded a certificate of mechanic’s lien on the Madison land records and on that same date, the plaintiff had a state marshal serve copies of the certificate of mechanic’s lien upon the defendants in accordance with General Statutes § 49-34. On May 26, 2017, the plaintiff recorded a lis pendens on the Madison land records giving notice of this foreclosure action. On May 30, 2017, the plaintiff served the summons and complaint of this foreclosure action upon the defendants. There is no dispute that the plaintiff complied with General Statutes § 49-34 by timely recording a certificate of mechanic’s lien on the Madison land records and serving copies on the defendants. The plaintiff has perfected a mechanic’s lien for repairs of the property pursuant to Connecticut General Statutes § 49-33(a). The plaintiff served this foreclosure action in compliance with the one-year limitation period prescribed by § 49-39. Additional facts will be provided as necessary.
General Statutes § 49-34 provides: "Certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.
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."
General Statutes § 49-39 provides in relevant part: "A mechanic’s lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint ... and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded ..."
DISCUSSION
I
Count One Foreclosure
In count one of the complaint, the plaintiff seeks to foreclose on the mechanic’s lien it has placed on the defendants’ home at 479 Warpas Road, Madison, Connecticut to recover the balance the plaintiff claims is due under a contract he had with the defendants to perform electrical work at the defendants property. The plaintiff claims that the balance due under the contract is $10,593. The defendants claim that the balance due is $4,000. The court must first determine whether an enforceable oral agreement existed between the parties for work performed by the plaintiff, the amount the parties agreed upon for the work performed, and the balance due, if any.
" ‘The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.’ (Internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn.App. 297, 303, 934 A.2d 827 (2007), cert. denied, 274 285 Conn. 907, 908, 942 A.2d 415, 416 (2008). ‘In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties ... The mutual understanding must manifest itself by a mutual assent between the parties.’ (Internal quotation marks omitted.) Krondes v. O’Boy, 37 Conn.App. 430, 434, 656 A.2d 692 (1995). In other words, to prove the formation of an enforceable agreement, a plaintiff must establish the existence of ‘a mutual assent, or a "meeting of the minds" ...’ Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 764, 674 A.2d 1313 (1996); see also Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970) (‘burden rested on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract’)." Computer Reporting Service, LLC v. Lovejoy and Associates, LLC, 167 Conn.App. 36 44, 145 A.3d 266 (2016).
" ‘In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.’ (Internal quotation marks omitted.) Milford Bank v. Phoenix Contracting Group., Inc., supra, 143 Conn.App. at 527-28, 72 A.3d 55. ‘ "Meeting of the minds" is defined as "mutual agreement and assent of two parties to contract to substance and terms. It is an agreement reached by the parties to a contract and expressed therein, or as the equivalent of mutual assent or mutual obligation." Black’s Law Dictionary (6th Ed. 1990). This definition refers to fundamental misunderstandings between the parties as to what are the essential elements or subjects of the contract. It refers to the terms of the contract, not to the power of one party to execute a contract as the agent of another.’ Sicaras v. Hartford, 44 Conn.App. 771, 784, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997)." Tedesco v. Agolli, 182 Conn.App. 291, 307-08 (2018).
" ‘The parties’ intentions manifested by their acts and words are essential to the court’s determination of whether a contract was entered into and what its terms were ... Whether the parties intended to be bound without signing a formal written document is an inference of fact [to be made by] the trial court ...’ (Internal quotation marks omitted.) MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 454-55, 889 A.2d 850 (2006). ‘[M]utual assent is to be judged only by overt acts and words rather than by the hidden, subjective or secret intention of the parties.’ 1 S. Williston, Contracts (4th Ed. Lord 2007) § 4.1, p. 325." Computer Reporting Service, LLC v. Lovejoy and Associates, LLC, 167 Conn.App. 36 44-45, 145 A.3d 266 (2016).
It is clear from the credible evidence, that the parties in the present case, in December 2015, formed an enforceable oral contract, the terms of which the plaintiff was to perform electrical services at the defendants’ home specified in drawings by the defendant, Lisa Evarts, the defendants were to purchase the materials for the work to be done, and the agreed-upon price for the work was $7,000. The defendants did in fact purchase the materials. It is also undisputed that the defendants paid the plaintiff $3,000. There is no question that in December 2015, the parties had a meeting of the minds and mutually agreed that the plaintiff would perform electrical work for the defendants for $7,000, based upon the drawings submitted by the defendant, Lisa Evarts. Accordingly, an enforceable oral agreement was formed in December 2015 for work to be performed by the plaintiff for the defendants for $7,000. The question for this court to determine is whether the parties modified the contract to increase the scope of the work to include the additional work performed by the plaintiff and to increase the total contract price from $7,000 to $13,593. The plaintiff testified that he performed additional work not specified in the drawings, and that the additional work was performed at the request of the defendants. The defendants testified that the scope of the work included all of the work needed at the property and that the parties agreed in December 2015, that the defendants would pay the plaintiff $7,000 for his services.
" ‘Whether the parties to a contract intended to modify the contract is a question of fact ... The resolution of conflicting factual claims falls within the province of the trial court ... For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense ... Modification of a contract may be inferred from the attendant circumstances and conduct of the parties.’ " (Internal quotation marks omitted.) Tsonis v. Martens, 116 Conn.App. 568, 577, 976 A.2d 53 (2009). The plaintiff has failed to establish by a fair preponderance of the evidence that the contract formed in December 2015, was modified from a contract price of $7,000 to a contract price of $13,593. There is no competent evidence that there was mutual assent by the parties that the plaintiff’s work would cost $13,593. There is simply not enough evidence to conclude that the parties mutually agreed that the plaintiff would be paid $13,593 for the work he performed.
"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 ..." (Internal quotation marks omitted.) F.B. Mattson Co., Inc. v. Tarte, 247 Conn. 234, 237-38, 719 A.2d 1158 (1998). "Persons entitled to claim a mechanic’s lien ... are those who have provided ‘services’ or ‘materials’ in connection with ‘the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot ... of land ...’ " (Internal quotation marks omitted.) Id., at 238-39 n.2, 719 A.2d 1158. Any mechanic’s lien may be foreclosed in the same manner as a mortgage. See General Statutes § 49-33(i). "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." (Internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 183-84, 942 A.2d 1028 (2008).
In the present case, there is no dispute that the plaintiff, pursuant to the contract with the defendants, provided electrical services for the purposes of improving the defendants’ property. Further, the defendants have not contested the validity of the mechanic’s lien. The only issue for the court to resolve is the amount of the debt on the lien that is supported by the evidence.
"[I]n a foreclosure of a mechanic’s lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of the project." Intercity Development, LLC v. Andrade, 96 Conn.App. 608, 612, 901 A.2d 731 (2006), rev’d in part on other grounds, 286 Conn. 177, 942 A.2d 1028 (2008). See also General Statutes § 49-33(a). "In the alternative, if it is found that the contractor substantially performed the contract, the court may determine the amount of the mechanic’s lien by deducting the sum representing the cost of completion from the balance due on the contract." Intercity Development, LLC v. Andrade, supra, 96 Conn.App. 613. "Once the amount claimed to be due ... has been secured by a mechanic’s lien, ... [it] may be diminished only by (1) the reasonable cost of satisfactory completion of the contract, (2) any damages for which the general contractor might be liable to the owner, and (3) any bona fide payments that were made by the owner before it received notice of the lien." See Chris Construction Co. v. May Centers, Inc., 23 Conn.App. 453, 459, 581 A.2d 748 (1990).
The court finds that the plaintiff substantially completed the electrical work performed on the defendants’ property and that the work performed was sufficient to pass the town of Madison’s first inspection. The defendants have not provided the court with any credible evidence that they incurred damages for which the plaintiff might be liable. As this court previously found, there was an enforceable oral agreement between the parties, the terms of which provided that the plaintiff was to perform electrical services on the defendants’ property, the defendants were to supply the materials needed, and the agreed-upon price for the plaintiff’s services was $7,000. Because the court has found that the plaintiff substantially completed the electrical work contracted for, the plaintiff is entitled to recover the amount unpaid on the contract, reduced by amounts already paid by the defendants. Accordingly, the court finds that the allegations contained in the first count have been established by a preponderance of the evidence, except that the plaintiff is entitled to recover $4,000, which is the contract price minus the $3,000 paid by the defendants, plus costs and attorneys fees in accordance with General Statutes § 52-249. Judgment may enter in favor of the plaintiff for foreclosure of the mechanic’s lien in the amount of $4000. Connecticut General Statutes § 52-249 provides that the plaintiff in a foreclosure of a mortgage or lien shall be allowed a reasonable attorneys fee. Upon the plaintiff’s presentation of an affidavit of attorneys fee the court will award the plaintiff reasonable attorneys fees on the first count.
General Statutes § 52-249(a) provides: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic’s lien."
II
Count Two- Breach of Contract
Count two of the complaint alleges a breach of the same contract at issue in the first count. Therefore, the same amounts are due to the plaintiff under count two, and judgment may be entered in favor of the plaintiff on count two. See Camelot Modular Homes, Inc. v. Freska, Superior Court, judicial district of Middlesex, Docket No. CV 07 5001754 (July 30, 2008, Aurigemma, J.).
III
Counts Three and Four
Unjust Enrichment and Promissory Estoppel
"Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract ... In order for the plaintiff to recover under the doctrine, it must be shown that the defendants were benefitted, that the benefit was unjust in that it was not paid for by the defendants, and that the failure of payment operated to the detriment of the plaintiff." (Citation omitted; internal quotation marks omitted.) Burns v. Koellmer, 11 Conn.App. 375, 383, 527 A.2d 1210 (1987). Stratford v. Wilson, 151 Conn.App. 39, 49 (2014). "[T]he concept of unjust enrichment is premised on affording an equitable claim in the absence of a recognized legal claim, and plaintiff has no contractual claim against the defendant ... [U]njust enrichment requires an evaluation of the equities in the absence of a contractual relationship ." (Emphasis added.) M & L Const., Inc. v. Town of Darien, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTCV-136022914-S, (March 5, 2015, Povadator, J.) . Here, the plaintiff has a legal remedy pursuant to an enforceable oral contract as this court previously found. Accordingly, as the plaintiff has a legal remedy pursuant to contract, his unjust enrichment claim fails. Judgment is entered in favor of the defendants on count three.
"Under the law of contract, a promise is generally not enforceable unless it is supported by consideration ... This court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor ... Section 90 of the Restatement [ (Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise ... A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all ...
"Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for ... application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer ... This, of course, is consistent with the principle that, although [a]n offer is nearly always a promise ... all promises are not offers ...
"Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future ... [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance ... and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion ... Finally, whether a representation rises to the level of a promise is generally a question of fact, to be determined in light of the circumstances under which the representation was made." (Citations omitted; emphasis in original; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-06, 837 A.2d 736 (2003). In the present case, as the court previously found, the evidence demonstrates that the parties entered into an enforceable contract for electric services to be performed by the plaintiff on the defendants’ property for a price of $7,000. As the court previously concluded, the plaintiff has failed to demonstrate that the parties entered into an enforceable contract for $13,593. Neither has the plaintiff proven the elements of promissory estoppel. Accordingly, judgment shall enter in favor of the defendants on count four.
CONCLUSION
Judgment may enter in favor of the plaintiff on count one for foreclosure of the mechanic’s lien in the amount of $4,000. Connecticut General Statutes § 52-249 provides that the plaintiff in a foreclosure of a mortgage or lien shall be allowed a reasonable attorneys fee. Upon the plaintiff’s presentation of an affidavit of attorneys fee the court will award the plaintiff reasonable attorneys fees on the first count. In accordance with § 52-249, the plaintiff is also awarded costs. Count two of the complaint alleges a breach of the same contract at issue in the first count. Therefore, the same amounts are due to the plaintiff under count two, and judgment may be entered in favor of the plaintiff on count two. Judgment shall enter in favor of the defendants on counts three and four. It is so ordered.
General Statutes § 49-35 provides in relevant part: "Notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, state marshal or other proper officer, by leaving with such owner or original contractor or at such owner’s or the original contractor’s usual place of abode a true and attested copy thereof. If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides. If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication in accordance with the provisions of section 1-2. When there are two or more owners, or two or more original contractors, the notice shall be so served on each owner and on each original contractor. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice not later than thirty days after the filing of the certificate pursuant to section 49-34."