Absolute Plumbing & Heating, Llc v. Edelman, 34438.

• Decision Date: 15 October 2013
• Docket Number: No. 34438.,34438.
• Citation: 146 Conn.App. 383,77 A.3d 889
• Court: Connecticut Court of Appeals
• Parties: ABSOLUTE PLUMBING AND HEATING, LLC v. Alison EDELMAN et al. Jr Remodeling, LLC v. Alison Edelman et al.

146 Conn.App. 383

77 A.3d 889

ABSOLUTE PLUMBING AND HEATING, LLC

v.Alison EDELMAN et al.

Jr Remodeling, LLC

v.Alison Edelman et al.

No. 34438.

Appellate Court of Connecticut.

Argued Jan. 17, 2013.

Decided Oct. 15, 2013.

Edward Kanowitz, for the appellants (defendants in both cases).

Lorey Rives Leddy, with whom, on the brief, was Brendan J. O'Rourke, New Canaan, for the appellees (plaintiff in each case).

DiPENTIMA, C.J., and SHELDON and FLYNN, Js.

DiPENTIMA, C.J.

This appeal arises from consolidated actions brought by subcontractors to foreclose on mechanic's liens placed on the defendant's property to secure the value of their labor and services on a home improvement project. The defendant, Alison Edelman, individually and as executrix of the estate of her mother, Claudia Pearl,¹ appeals from the trial court's judgment accepting a report by the attorney trial referee (referee) awarding damages, interest, and attorney's fees to the plaintiff subcontractors,² Absolute Plumbing & Heating, LLC (Absolute Plumbing) and JR Remodeling, LLC (JR Remodeling). On appeal, the defendant claims that the trial court improperly adopted the referee's report because (1) it failed to consider the applicability of the Home Improvement Act (act), General Statutes § 20–418 et seq., to the validity of the plaintiffs' liens, and (2) the evidence presented did not support either the referee's factual finding as to the contract price agreed to by the defendant and the general contractoror his finding that the construction work agreed to under the contract had been substantially completed. The defendant further claims that the trial court improperly awarded attorney's fees to the plaintiffs. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On December 27, 2005, the defendant entered into a contract with Schott Construction, LLC (Schott), as general contractor, to make renovations on the residential property located at 51 Maple Avenue North in Westport (property). The contract stated an estimated total price of $454,341.80. Over the course of construction, the contract was modified, in accordance with its terms, by numerous “construction summaries.” These summaries reflected additions to the scope of the project and corresponding increases in the contract price, which had been discussed with and orally agreed to by the defendant. After becoming dissatisfied with the general contractor's performance, the defendant terminated the contract with Schott on September 19, 2006. The defendant subsequently hired other general contractors, DeFelice Contracting (DeFelice) and Bella Cucina Design, LLC, to continue and expand the work on the project.

During the course of its work on the project, Schott engaged the plaintiffs as subcontractors to perform work on the premises. Absolute Plumbing was hired to perform the heating and plumbing work and JR Remodeling was hired to perform the carpentry work. The defendant was aware that this work was being performed by the plaintiffs. When the defendant unilaterally terminated the contract with Schott, she directed the plaintiffs to leave the premises. After the contract was terminated, Schott sent a letter to the defendant on October 13, 2006, demanding full payment under the terms of the contract. The amount so demanded included $16,837.20 that Schott owed to Absolute Plumbing and $9460 that it owed to JR Remodeling for work performed by them on the project. The defendant took no action in response to this demand letter. The plaintiffs subsequently filed separate certificates of mechanic's lien for the amounts they were owed for their work on the project.³ In December, 2007, the plaintiffs brought separate actions to foreclose on their respective mechanic's liens, which the defendant answered by denying all liability. Additional facts will be set forth as necessary.

The plaintiffs' separate actions were consolidated by a March 10, 2010 court order.⁴ The parties then elected to proceed to trial before an attorney trial referee on August 13, 2010. On the first day of trial, the defendant sought to file special defenses, alleging that they had paid Schott in excess of the contract price and that the plaintiffs had not properly presented their claims to the defendant as executrix of the estate of Pearl. Upon the plaintiffs' objection the referee did not allow the special defenses, finding the request untimely and procedurally defective. Thereafter, the referee concluded that the plaintiffs were entitled to the foreclosure of their mechanic's liens. The referee found that the defendant owed Absolute Plumbing a total of $30,192.49 and JR Remodeling a total of $18,635.74, which sums included amounts for their respective liens and costs, plus prejudgment interest of 10 percent per year from September 19, 2006. Finally, the referee determined that the plaintiffs were entitled to attorney's fees, but made no findings as to the amounts of those fees.

Pursuant to Practice Book § 19–14, the defendant objected to these findings of fact and to the acceptance of the referee's report, claiming that no lienable fund existed from which the plaintiffs could recover. The defendant also contended that the referee should have applied the act to its analysis of the plaintiffs' actions and that the referee improperly determined that (1) the plaintiffs had made proper service of process upon her, (2) the liens were in the correct amounts, (3) Schott's work under the contract had been substantially completed, and, therefore, the liens were enforceable, and (4) the plaintiffs were entitled to attorney's fees. In its June 9, 2011 memorandum of decision, the trial court accepted the referee's report with respect to all findings therein, but did not determine the issue of attorney's fees, as the parties had agreed to reserve that issue for a later hearing. The court denied the defendant's subsequent motion to reargue or reconsider that decision.

Following a July 6, 2011 evidentiary hearing on the issue of attorney's fees, the trial court issued a supplemental memorandum of decision. The court awarded attorney's fees in the amounts of $16,691.50 and $29,707.51 to JR Remodeling and Absolute Plumbing, respectively. This appeal followed. ⁵

I

The defendant first claims that the trial court improperly accepted the referee's report because the referee failed to analyze the defendant's claims pursuant to General Statutes § 20–429, which sets forth the contract provisions required under the act.⁶

The standard of review in cases referred to attorney trial referees is well settled. “[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal [determinations] reached by an attorney trial referee have no conclusive effect.... The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.... [When] legal [determinations] are challenged, [the reviewing court] must determine whether they are legally and logically correct and whether they find support in the facts found by the ... referee.” (Internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 796, 17 A.3d 40 (2011).

After considering the defendant's arguments submitted in her objection to the acceptance of the referee's report, the trial court, as the reviewing court, concluded that because the defendant had not pleaded the act as a special defense, the referee “cannot be held accountable for failing to make a recommendation to the court as to its applicability.” Thus, on our review, the threshold question we must answer is “whether a statute should have been specially pleaded as a defense. Section [10–50] of the Practice Book addresses whether a defense must be specially pleaded.... The purpose of § [10–50] is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way....

“When the evidence needed to establish that no cause of action [exists] is consistent with the allegations necessary to establish a prima facie case, a special defense is required.... We conclude that the [defendant] should have pleaded the [act] as a special defense.” (Citations omitted; internal quotation marks omitted.) Sidney v. DeVries, 18 Conn.App. 581, 585–87, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990).

We agree with the court's conclusion that the defendant did in the present case not properly plead the act as a special defense. Although the defendant attempted to raise the issue of the act at trial, the referee specifically concluded that “there are no special defenses submitted in this case.” As this court has recognized, “a party seeking to utilize the act as a shield to liability must plead it as a special defense.... At the same time, a failure to allege a special defense is waived if evidence relating to that special defense is admitted without objection.” (Citation omitted; internal quotation marks omitted.) Brett Stone Painting & Maintenance, LLC v. New England Bank, 143 Conn.App. 671, 690, 72 A.3d 1121 (2013)

No such waiver is present here. To the contrary, the plaintiffs' counsel, Brendan O'Rourke, objected to the defendant's invocation of the act and to her counsel's attempts to submit evidence relating to the discharge of Schott's lien on the ground that it had violated the act. O'Rourke stated that “this defense was not [pleaded] in any way as a special defense to my clients' claims being tried before this court. So this is another example of where I'm being presented with a legal argument that ... should have been specially [pleaded] so I would be in a position to have been put on notice and be in a position to have addressed it.” See id., at...