New England Sav. Bank v. Meadow Lakes Realty Co.

• Decision Date: 02 January 1996
• Docket Number: No. 15207,15207
• Citation: 235 Conn. 663,668 A.2d 712
• Court: Connecticut Supreme Court
• Parties: NEW ENGLAND SAVINGS BANK v. MEADOW LAKES REALTY COMPANY et al. ANGUS MCDONALD/GARY SHARPE AND ASSOCIATES, INC. v. GLEN LAKES REALTY COMPANY et al.

Page 712

668 A.2d 712

235 Conn. 663

NEW ENGLAND SAVINGS BANK v. MEADOW LAKES REALTY COMPANY et al.

ANGUS MCDONALD/GARY SHARPE AND ASSOCIATES, INC. v. GLEN LAKES REALTY COMPANY et al.

No. 15207.

Supreme Court of Connecticut.

Argued Nov. 1, 1995.

Decided Jan. 2, 1996.

John S. Bennet, for appellant (Angus McDonald/Gary Sharpe and Associates, Inc.).

Jeffrey F. Buebendorf, with whom, on the brief, was Michael D. Colonese, for appellee (ALI, Inc.).

Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and PALMER, JJ.

CALLAHAN, Associate Justice.

The sole issue in this certified appeal is whether the Appellate Court properly dismissed an appeal because it had not been timely filed. Underlying the appeal are two foreclosure actions with respect to the same real property in East Lyme. One, Angus McDonald-Gary Sharpe & Associates, Inc. v. Glen Lakes Realty, involved the foreclosure of a mechanic's lien. The other, New England Savings Bank v. Meadow Lakes Realty Co., involved a mortgage foreclosure. The two actions were consolidated for trial in order to resolve competing claims of priority between the two liens. In the mortgage foreclosure action, a motion to substitute ALI, Inc. (ALI), as the plaintiff was granted because New England Savings Bank, through the United States comptroller of the currency, had transferred and set over to ALI the subject mortgage deed and note for $400,000. ALI also was substituted for New England Savings Bank in the mechanic's lien foreclosure action in which the bank was named as a defendant.

On September 13, 1994, during a trial on the merits of the foreclosure actions, the trial court ruled that the mechanic's lien held by Angus McDonald/Gary Sharpe and Associates, Inc. (Associates), was invalid ¹ and ordered it discharged. Thereafter, the court proceeded with the trial in order to determine the total amount due ALI on its mortgage note, set the law days and award various fees. On September 26, Associates filed a notice of reservation of right to appeal the discharge of its mechanic's lien pursuant to Practice Book § 4002. ² On October 24, the trial court rendered a judgment of strict foreclosure in favor of ALI. As part of that judgment, the court set law days and awarded counsel fees, a title search fee and appraisal fees.

On November 9, 1994, Associates appealed to the Appellate Court from the judgment of discharge of its mechanic's lien. On November 18, 1994, ALI moved to dismiss Associates' appeal, claiming that the appeal had not been timely filed pursuant to General Statutes § 49- The Appellate Court without comment, granted ALI's motion to dismiss on December 14, 1994. ⁴ We granted Associates' petition for certification limited to the following question: "Did the Appellate Court properly dismiss this appeal for untimeliness?" Angus McDonald/Gary Sharpe & Associates, Inc. v. Glen Lakes Realty, 232 Conn. 915, 655 A.2d 259 (1995).

For purposes of our review of the Appellate Court's dismissal of Associates' appeal, we assume that the Appellate Court based its dismissal on the only grounds alleged in ALI's motion to dismiss, i.e., that Associates' appeal was not timely filed within the seven day time period mandated by § 49-35c(b). ALI claims that even though Associates' lien was discharged during a trial on the merits and not as a result of a pretrial application or motion, the seven day appeal period of § 49-35c(b) is applicable. We disagree with ALI and with the Appellate Court's dismissal of Associates' appeal. We conclude that Associates' appeal is not controlled by § 49-35c and, therefore, should not have been dismissed for failure to adhere to the seven day time limitation contained in § 49-35c(b).

Section 49-35c(b) provides in pertinent part that "[n]o appeal may be taken from the order [discharging a mechanic's lien] except within seven days thereof." (Emphasis added.) Section 49-35c(a) limits the applicability of § 49-35c(b) to "order[s] entered as provided in subsection (b) of section 49-35b...." The plain language of § 49-35c(a) and (b), therefore, manifests the legislative intent that the seven day time limit apply only to orders entered pursuant to § 49-35b. ⁵ Section 49-35b, in turn, refers back to "hearing[s] held on the application or motion set forth in section 49-35a...." Sequentially, § 49-35a(a) ⁶ provides: "Whenever one or more mechanics' liens are placed upon any real estate ... the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced...." Similarly, if an action to foreclose a mechanic's lien is already pending, a party may seek a pretrial adjudication of the validity of the lien under § 49-35a(c), which provides: "If an action for foreclosure of the lien is pending before any court, any party to that action may at any time prior to trial, unless an application under subsection (a) of this section has previously been ruled upon, move that the lien be discharged or reduced."

Section 49-35a(a) and (c) provide for a pretrial determination of probable cause to establish the validity of a mechanic's lien on the application of the owner of the liened real estate or on the motion of any party. The court may deny an application for the discharge of a mechanic's lien if probable cause to sustain the validity of the lien is established at the pretrial hearing. The court may also order the lien discharged if probable cause is not established or if the lien's invalidity is established by clear and convincing evidence. See General Statutes § 49-35b(b). This pretrial procedure allows for a prompt and relatively inexpensive pretrial determination of the validity of a mechanic's lien prior to the trial of a foreclosure action. See Pero Building Co. v. Smith, 6 Conn.App. 180, 183, 504 A.2d 524 (1986).

In this case, no motion or application pursuant to § 49-35a to discharge the mechanic's lien was made before trial. The entire statutory scheme on which ALI relies, however, is directed to and intended to apply only to the pretrial adjudication of the validity of a mechanic's lien, and is wholly inapplicable to the discharge of a mechanic's lien as part and parcel of a full trial on the merits of a foreclosure as was the case here. We conclude, therefore, that the seven day time limit in § 49-35c(b) is inapplicable under the present circumstances. Accordingly, Associates' appeal should not have been dismissed on the ground that it was filed after the expiration of the mandatory seven day time period.

ALI raises in this court for the first time the argument that even if the seven day period of § 49-35c(b) is inapplicable to Associates' appeal, the appeal should have been dismissed as untimely because it was not filed within the twenty day time limit provided by Practice Book § 4009. This twenty day appeal period is applicable "except where a different period is provided by statute." We have previously held that the twenty day time limit of § 4009, in contrast to many statutory time limits, does not implicate a court's subject matter jurisdiction. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 761-62, 628 A.2d 1303 (1993). Enforcement of the twenty day limit is, therefore, within the discretion of the court before which the appeal is pending. We decline to decide an issue properly within the Appellate Court's discretion with which that court was never presented.

The judgment is reversed and the case is remanded to the Appellate Court for further proceedings according to law.

In this opinion the other justices concurred.

1 The court declared that the lien was invalid because it did not adequately describe the property that was subject to the lien; General Statutes § 49-34(1)(A); because the lien was placed on one parcel based upon work done on another parcel; see DeWolf v. Bonee, 91 Conn. 712, 101 A. 233 (1917); because at least part of the lien was for work performed without the consent of the record owner in violation of General Statutes § 49-33(a); see Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591, 620 A.2d 127 (1993); and because of the potential conflict of interest of Angus McDonald who served as both a partner and a potential creditor of Associates.

2 Practice Book § 4002 provides: "Appeal from Judgment Disposing of Part of Issues

"(a) A judgment pursuant to subsections (b) or (c) of this rule that disposes of certain of the issues between the parties or of part or all of the issues between some of them may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of on other issues or as to other parties. Alternatively, the party or parties may reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes and as respects all part...