Pomarico v. Gary Const., Inc.

• Decision Date: 27 August 1985
• Docket Number: No. 2518,2518
• Citation: 5 Conn.App. 106,497 A.2d 70
• Court: Connecticut Court of Appeals
• Parties: Carolyn POMARICO v. GARY CONSTRUCTION, INC.

Page 70

497 A.2d 70

5 Conn.App. 106

Carolyn POMARICO v. GARY CONSTRUCTION, INC.

No. 2518.

Appellate Court of Connecticut.

Argued April 3, 1985.

Decided Aug. 27, 1985.

William T. Shea, Meriden, with whom, on brief, was Antoinette E. Grenier, Meriden, for appellant-appellee (defendant).

Sid M. Miller, Hamden, for appellee-appellant (plaintiff).

Before DUPONT, C.P.J., and BORDEN and DALY, JJ. DALY, Judge.

The plaintiff applied for the discharge or reduction of a mechanic's lien placed on her property by the defendant. The trial court rendered judgment ordering the mechanic's lien discharged and the defendant appealed from this judgment. The plaintiff then cross appealed, challenging the trial court's conclusion that the defendant had not waived its lien rights.

The trial court found the following facts: Pursuant to a written agreement between the parties, executed in October, 1982, the defendant contracted to perform certain work on the plaintiff developer's property, Happy Homes Estates, located in Meriden. The scope of the work included all clearing, blasting, grading, landscaping, paving, construction and other work necessary to complete a roadway, sidewalks, paths, curbing, installation of water and sanitary sewer lines, storm drainage systems, erosion and sedimentation control systems and other improvements in accordance with a subdivision plan.

The defendant filed a mechanic's lien in the amount of $208,792, dated March 11, 1983, and recorded on March 14, 1983, in the Meriden land records upon the subject property. The lien was placed on thirteen residential lots in the subdivision. Some of these lots had already been built upon and sold by the plaintiff. It purports to cover site development work performed by the defendant pursuant to the contract from September or October, 1982, through January 14, 1983. The lien is in blanket form and does not identify the specific work done or materials furnished to any particular house or lot.

The trial court concluded that the lien was invalid because it failed to conform to the lienable unit requirements and because its blanket single form of certificate failed to identify the particular premises against which the lien is claimed.

The trial court further found that since the defendant had removed its equipment and ceased working in the middle of December, 1982, work thereafter demanded of the defendant by the city inland wetland agency, which was concluded on January 14, 1983, did not toll the sixty day requirement of General Statutes § 49-34. ¹

The defendant claims that the trial court erred in concluding (1) that the mechanic's lien was invalid because it violated the "lienable unit" test, (2) that the work was completed in December, 1982, and (3) that the defendant failed to prove the validity of the lien by clear and convincing evidence. The plaintiff claims in her cross appeal that the trial court erred (1) in excluding paragraph seven from the written agreement, which paragraph provided for a waiver of the defendant's mechanic's lien rights, on the basis that there was no meeting of the minds between the parties; and (2) in discounting an oral waiver of mechanic's lien stipulated to by the parties in open court in a separate proceeding.

Our cases construing the language of General Statutes § 49-33, before it was amended effective October 1, 1974, required, as a condition of lienability, that the work done be incorporated in or utilized in the building or appurtenance to be constructed, raised, removed or repaired. Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 552, 429 A.2d 796 (1980). This was the so-called "lienable unit" theory. In re Glen Haven Estates, 123 F.Supp. 659, 660-61 (D.Conn.1954).

When General Statutes § 49-33 ² was amended in 1974, the mechanic's lien was extended to encompass claims for materials furnished or services rendered " 'in the improvement of any lot or in the site development or subdivision of any plot of land....' " Camputaro v. Stuart Hardwood Corporation, supra, 180 Conn. at 553-54, 429 A.2d 796.

"Although the legislative history of the amended § 49-33 is, as is often true, somewhat murky, it is consistent with an intention to expand the coverage of the mechanic's lien." (Footnote omitted.) Id., at 554, 429 A.2d 796. Footnote six in Camputaro, which discusses the legislative history, provides: "Public Acts 1974, No. 74-310 expanded the scope of General Statutes § 49-33 to include the terms 'the improvement of any lot' and 'the site development or subdivision of any plot of land.' It is the first of these additions, 'the improvement of any lot,' that is at issue in the present case. In commenting on an amendment to the bill, which was subsequently enacted as Public Acts 1974, No. 74-310, the reporting committee chairman in the House of Representatives stated: 'We still have an extension of the mechanic's lien even though we don't have an extension of the time to file it. You can file it against the property or sub-division whereas heretofore you could only file it against the house that was being worked on, the building.' And again, in response to the question, 'Does he contend that it's the amendment that extends the applicability of the land or is it the bill itself ...,' the reporting committee chairman, Representative Newman responded: 'The bill, of course, sir.' 17 H.R.Proc., Pt. 9, 1974 Sess., pp. 4138, 4140. Compare the comments of the reporting committee chairman in the Senate, Senator Rome, who stated: 'The bill now as amended would provide that sub-dividers of land, persons who might also be doing site work on the land would have lien rights. The question is, under the existing court adjudications, whether or not that (sic) have or have not those rights. This clearly spells it out. They do....' 17 S.Proc., Pt. 3, 1974 Sess., p. 1338." Camputaro v. Stuart Hardwood Corporation, supra, at 554-55 n. 6, 429 A.2d 796. We conclude that the statute as amended eliminated the "lienable unit" requirement from this defendant's mechanic's lien.

The defendant believed that his task was completed on December 7, 1982, but, at the demand of the city inland wetland agency, returned to perform work on the level spreader ³ which was completed on January 14, 1983. The level spreader is located in the vicinity of lot No. twenty-six, and was of value to every lot in the subdivision. All lots in the subdivision will benefit from the erosion protection provided by it. We are equating the demand of the city inland wetland agency as work performed for the benefit of the whole development. Hence, the lien falls within the site development purview of General Statutes § 49-33, as amended. We conclude that the filing of the...