Opinion
No. CV 08-5008147
April 7, 2010
MEMORANDUM OF DECISION
This vigorously contested action involves both a claim for the foreclosure of a mechanic lien and an action for unjust enrichment started by a writ, summons and complaint dated July 1, 2008. After various pleadings a trial was held in this court on March 25, 2010. The parties agreed to bifurcate the issues relating to foreclosure until after a determination as to liability generally.
The factual findings, from the evidence at the trial and the reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, will be set forth during the discussion which follows.
Plaintiff, Walter Electric, LLC is an electrical contractor which performed work from March 21, 2007, to April 6, 2007, at 61 West Coit Street in New London, Connecticut (the property) pursuant to a written contract with defendant Broad Street Investment Group, LLC. (Hereafter "Broad Street.") The contract, dated March 13, 2007, was for electrical work on a residential building which was being rehabilitated. The building had been condemned in 2004. Plaintiff's contract with Broad Street was with a general contractor, not the owner of the property. Broad Street, originally a party defendant, was defaulted for failure to appear. There was no credible evidence that Broad Street had authority to act for the owner or had the consent of the owner to enter into the contract.
The owner at the time of the contract, Rosa Garcia, is no longer a party defendant since she conveyed the property to the mortgagee, Time Mortgage Company, LLC ("Time") in lieu of foreclosure. Time's mortgage was recorded March 30, 2007. Title was conveyed to Time in April 2008. Time remains the owner of the property at the time of trial.
The remaining party defendant is Jose Muniz-Alvarez. It is alleged that he has a mechanic's lien on the property for work that he did commencing in April 2007. On December 1, 2008, he was defaulted for failure to plead.
Essentially, therefore, the plaintiff, a subcontractor, is making a claim against the only defendant left, whose March 16, 2007, mortgage from Rosa Garcia was subsequent to the plaintiff's contract with the general contractor and who did not acquire title until April 2008 long after the plaintiff's work was completed.
Count one of the amended complaint dated April 2, 2009, is based on the statutory right of a contractor to lien the property benefitted by its work. See C.G.S. § 49-33, et seq. The statute provides in part the right to a lien to "any person [who] has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building . . . by virtue of an agreement with or by the consent of the owner . . . or some person having authority from or rightfully acting for the owner . . ." The lien must be filed within ninety days of the last work done and foreclosed within one year of its filing on the land records. In its answer, defendant Time admits that plaintiff did work, but Time does not admit the full extent of that work and claims not to be responsible for the payment. There is no dispute as to the time requirements in this foreclosure. Also there was no claims as to the quality of the work.
The evidence shows that the work done was to install the electrical lines from the street to the boxes installed by plaintiff on the exterior of the house, then complete the rough wiring throughout the four dwelling units, the basement and the common areas of the property and the installation of service panels within the house.
The total contract price of the electrical work to have been performed by the plaintiff was $24,910. The payment schedule in the contract called for installment payments as the work progressed. $12,455 was to be paid at the startup for a deposit. $7,473 was to be paid when the "rough in" was completed. The balance was $4,982 which was due when the "trimout" had been completed. It is found from the evidence that the "rough in" work was completed by the plaintiff. It is also found that plaintiff was only paid $5,000. The plaintiff's employees continued to do the work nevertheless because there had been prior jobs with Broad Street for which it was always paid. But, not having been paid more, the lien filed was for $14,928. However, before the lien was filed, defendant Time (at that time a mortgagee) paid the amount of $12,455 for the electrical work. That check was payable to both Broad Street, the general contractor, and the plaintiff, a subcontractor. It is found that the plaintiff never received funds from that payment. It is also found that the said payment was made by Time on behalf of the then owner of the property (Def's Exh A B). There was no evidence presented at the trial that the plaintiff ever intended the then owner, Rosa Garcia, to pay it for the work done under its contract with Broad Street. The evidence was that plaintiff had prior dealings with Broad Street and expected Broad Street to pay it for this work.
The lien was filed on July 3, 2007, relating back to work started on March 21, 2007. This therefore was before the recording of Time's mortgage on March 30, 2007, and thus has priority to the extent a lien had been proven or established.
There was no evidence introduced at the trial as to the value of the work done by the plaintiff to the owner of the property. The claim that the contract price between the general contractor and the subcontractor (plaintiff) provides that proof will not avail the plaintiff.
"A mechanic's lien is a creature of statute. Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Swift Upson Lumber Co. v. Hatch Co., 115 Conn. 494, 498, 162 A.19 (1932). Its remedial purpose is to furnish security for a contractor's labor and materials. Camputaro v. Stuart Hardwood Corporation, supra; Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954). General Statutes § 49-33(a) governs the availability of mechanic's liens and provides protection to those lienors who have an agreement with or consent of the owner of the land or of some person having authority from or rightfully acting for the owner. Hall v. Peacock Fixture Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984); Seaman v. Climate Control Corporation, 181 Conn. 592, 595, 436 A.2d 271 (1980) . . . Under General Statutes § 49-33(a), the consent required from the owner or one acting under the owner's authority is more than the "mere granting of permission for work to be conducted on one's property;" Hall v. Peacock Fixture Electric Co, supra, 295; or the mere knowledge that work was being performed on one's land. Avery v. Smith, 96 Conn. 223, 227, 113 A. 313 (1921); Lyon v. Champion, 62 Conn. 75, 77, 25 A. 392 (1892); Huntley v. Holt, 58 Conn. 445, 449, 20 A. 469 (1890); Wilbur Smith Associates, Inc. v. FJ, Inc., 34 Conn.Sup. 638, 640, 382 A.2d 541 (1977). "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 the materials or labor. As stated in Peck v. Brush, 90 Conn. 651, 98 A. 561 (1916): `It is not necessary that the materials shall be furnished under an express contract, but it 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, supra, 228; St. Catherine's Church Corporation v. Technical Planning Associates, 9 Conn.App. 682-83 (1987).
General Statutes § 49-33(a) provides in pertinent part: "If a person has a claim for more than ten dollars for . . . services rendered . . . 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 . . . 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 claims."
In the recent case of Jay v. AA Ventures, LLC, 118 Conn.App. 506 (2009), our Appellate Court has set forth a statement of the law relating to a claim of unjust enrichment as follows:
". . . Certain well established principles guide our analysis of the defendant's claim. "[W]herever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed . . . Under such circumstances, the basis of the plaintiff's recovery under the doctrine of unjust enrichment of the defendant . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).
"[E]quitable remedies are not bound by formula but are molded to the needs of justice." Montanaro Bros. Builders, Inc. v. Snow, 4 Conn.App. 46, 54, 492 A.2d 223 (1985). Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine. Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001), on appeal after remand, 80 Conn.App. 436, 835 A2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). That doctrine is "based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated . . . The question is: Dis [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?" (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452."
Applying the law to the facts found and considering the arguments of the parties the court finds that the plaintiff has not sustained its burden of proof with respect to either of the counts alleged in the complaint. With respect to the first count there can be no lien without evidence of consent of the owner or some authority given to the party contracting with the plaintiff which was found totally lacking in this case. As to the second count of unjust enrichment, it cannot be found that Time, the remaining defendant, "unjustly" did not pay the plaintiff. That element of the requirement for the claim is not present in the evidence presented.
Accordingly, judgment is entered for the defendant Time as to both counts of the complaint, without costs to any party.