Jones Destruction, Inc. v. Upjohn

Decision Date11 May 1971
Citation161 Conn. 191,286 A.2d 308
CourtConnecticut Supreme Court
PartiesJONES DESTRUCTION, INC. v. Burton H. UPJOHN.

Frank A. Francis, with whom was Seymour L. Kroopnick, Hartford, for appellant (defendant).

Wendell S. Gates, Hartford, for appellee (plaintiff).

Before HOUSE, THIM, RYAN, SHAPIRO and LOISELLE, * JJ.

LOISELLE, Associate Justice.

This is an appeal by the defendant from the foreclosure of a mechanic's lien. The action was returnable to the Court of Common Pleas on the first Tuesday of April, 1965, and judgment was rendered on December 11, 1969.

The following undisputed facts were found by the trial court. The defendant owner had entered into an agreement with a general contractor for the construction of a paved parking lot which involved the demolition of two buildings on his land. The parking lot was thereafter to be leased by the defendant to his tenant at a rental of $500 a month from the date of occupancy. In April, 1964, the plaintiff submitted a bid of $2800 to the general contractor for the demolition of the buildings thereon and the rough grading of the premises. On April 30, 1964, the plaintiff was informed that it was the successful bidder. On June 9, 1964, the plaintiff received a purchase order from the general contractor directing that the work be completed by June 30, 1964.

The court found that the plaintiff completed the work it had contracted to do on or before July 29, 1964. The defendant has assigned as error the court's finding on this point. Since, however, it is conceded in the defendant's brief that there was evidence to that effect, this assignment of error is deemed to be without merit. State v. Mahmood, 158 Conn. 536, 539, 265 A.2d 83.

The court further found that the plaintiff filed a mechanic's lien on September 22, 1964, and that notice of intent to claim a mechanic's lien was given the defendant on the same day. The defendant has assigned error to two of the court's findings in this regard, but since this assignment of error has not been briefed, it must be treated as abandoned. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 77, 239 A.2d 500; Bartlett v. Flaherty, 155 Conn. 203, 205, 230 A.2d 436.

The defendant's primary claim is that as judgment was rendered more than two years after the commencement of this action to foreclose the mechanic's lien, it is barred by statute. General Statutes § 49-39, which was in force at the time this cause of action accrued, and also at the time this action was commenced, provided, in part, that '(n)o mechanic's lien shall continue in force for a longer period than two years after such lien has been perfected, unless the party claiming such lien, within said period, commences an action to foreclose the same and proceeds therewith to final judgment.'

Public Acts 1965, No. 193 was enacted in June, 1965, repealing § 49-39 of the General Statutes and substituting in lieu thereof: 'No mechanic's lien shall continue in force for a longer period than four years after such lien has been perfected, unless the party claiming such lien commences an action to foreclose the same * * * within two years from the date such lien was filed with such town clerk and then proceeds therewith to and obtains final judgment within the next two years from the date such action was commenced. * * * An action to foreclose a mechanic's lien shall be privileged in respect to assignment for trial.' Public Acts, Spec.Sess., Feb., 1965, No. 193. This act became operative on October 1, 1965. An amendment effectuated by 1969 Public Acts No. 732 is not meterial to this case.

The defendant has assigned as error the trial court's conclusion that Public Acts 1965, No. 193, hereinafter referred to as § 49-39, does not operate retroactively and does not apply to an action pending at the date it became operative. He asserts that the court, consequently, erred in overruling his claim that the mechanic's lien was invalid because the plaintiff failed to proceed to judgment within two years after the institution of suit or the passage of § 49-39. More than four years elapsed between the time the cause of action accrued and judgment and more than two years elapsed from the time the action was commenced and judgment rendered. Section 49-39 was enacted and became effective subsequent to the time this action was commenced, but it was in effect at the time judgment was rendered. Since this statute provides that judgment must be obtained within two years of the commencement of the suit and also that judgment be final within four years of the accrual of the cause of action, this action would be barred if the statute is construed to be retrospective.

The determination of whether a statute is retrospective presents a question of legislative intent, and where there is no specific provision to that effect, the question becomes one of presumed intent. Demarest v. Zoning Commission, 134 Conn. 572, 575, 59 A.2d 293. In this instance, § 49-39 is silent as to its retroactive applicability. Where that is the situation, the rule to be applied to determine whether it is prospective or retroactive, depends, in some measure, on whether it affects substantive or procedural matters.

Section 49-39 makes no change in the substantive law and does not alter in any way any substantive rights of the plaintiff. Section 49-39 is in the nature of a statute of limitations which provides, in essence, that a claim arising out of a mechanic's lien shall not be enforceable in the courts after the lapse of a specified period of time. Such a statute is generally considered to be procedural especially where, as here, the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action. See 51 Am.Jur.2d 605, Limitation of Actions, § 21; see also Davis v. Mills, 194 U.S. 451, 454, 24 S.Ct. 692, 48 L.Ed. 1067; Morris Plan Industrial Bank v. Richards, 131 Conn. 671, 673, 42 A.2d 147. For the foregoing reasons § 49-39 must be deemed to be essentially procedural.

Since § 49-39 is general in its terms and is procedural, it would ordinarily be applied retroactively to all actions whether pending or not at the time the statute became effective, in the absence of any expressed intention to the contrary. Schurgast v. Schumann, 156 Conn. 471, 487, 242 A.2d 695; Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632; E. M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525. Although only the remedy is affected by § 49-39, the legislative intent is not presumed merely because it concerns remedy alone. '(O)ur test of whether a procedural statute is to be applied retroactively, absent any specific provision in the statute on the point, is not a purely mechanical one. Even if the statute is procedural, it will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied.' Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58, 60; see Lane v. Hopfeld, 160 Conn. 53, 60, 273 A.2d 721; Lavieri v. Ulysses, supra; E. M. Loew's Enterprises, Inc. v. International Alliance, supra.

As has been pointed out, § 49-39 requires not only that the action to foreclose a mechanic's lien be brought within two years from the date such lien was filed but also that final judgment be obtained within two years from the date such action was commenced. This statute was enacted in June, 1965, and became effective on October 1, 1965. If the statute is construed to be retroactive, under its terms the plaintiff, which commenced its action in April, 1965, had approximately eighteen months from the effective date of the statute to obtain a final judgment. Those, however, who had cases pending for two years or more would have had only the four-month period between the enactment of the statute and its effective date to reduce their liens to judgment. We note that the summer court recess, then in effect, would be included in the four-month period. The decision to sue is the plaintiff's alone, and once his cause of action accrues he can institute a suit at any time, but the length of time which it takes for a final judgment to be rendered is a matter over which he has far less control. Thus, it might well be difficult, if not impossible, for some to obtain judgment within this four-month period. It is true that the statute provides that an action to foreclose a mechanic's lien 'shall be privileged in respect to assignment for trial.' Since, however, the statute did not become effective until October 1, 1965, those who had actions pending for two or...

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