Clem Martone Construction, LLC v. Depino
145 Conn. App. 316
| Conn. App. Ct. | 2013Background
- Foreclosure action on a mechanic’s lien by Clem Martone Construction, LLC against Patrick and Gina DePino; court awarded $10,368.75 in attorney’s fees, less than requested.
- Plaintiff argued the court applied the wrong legal standard under § 52-249(a) and improperly excluded fees for defense of the counterclaim.
- Counterclaim by the DePinos alleged defective performance; plaintiff sought fees for both foreclosure and defense-related work.
- Court treated § 42-150aa as inapplicable and followed Russo Roofing, Inc. v. Rottman to award fees only for foreclosure aspects, excluding defense work.
- Plaintiff appealed the attorney’s fees ruling; defendants cross-appealed from the foreclosure by sale ruling, which the court affirmed in part and remanded to adjust sale timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 52-249(a) authorizes attorney’s fees for defense of counterclaims | Martone contends Russo Roofing requires including defense work | DePinos argue Russo Roofing excludes defense fees | Fees must include defense work tied to foreclosure context |
| Whether the court properly limited attorney’s fees to foreclosure-related work | Martone asserts some defense work was necessary to prove substantial performance | DePinos contend no such cross-allowance should exist | Court abused by blanket exclusion of defense work; remand for reevaluation of total fees |
| Whether the plaintiff substantially performed under the contract | Substantial performance allowed foreclosure and fee recovery | DePinos challenge the benefit received | Court's substantial performance findings upheld; roof issue not dispositive |
| Whether the damages for roof deficiencies were correct | N/A | Roof damages should reflect full dismantling/remodeling costs | Damage award of $3,250 affirmed as appropriate remedy for repairs, not full restructuring |
Key Cases Cited
- Russo Roofing, Inc. v. Rottman, 86 Conn. App. 767 (Conn. App. 2005) (fee awards under § 52-249; avoid duplicate fees with § 42-150aa)
- E & M Custom Homes, LLC v. Negron, 140 Conn. App. 92 (Conn. App. 2013) (method to value materials and services; substantial performance standard)
- Pettit v. Hampton & Beech, Inc., 101 Conn. App. 502 (Conn. App. 2007) (Restatement (Second) of Contracts factors for substantial performance)
- Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55 (Conn. App. 2003) (Restatement-based materiality factors for performance)
- Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312 (Conn. 2013) (American rule and contract/statutory authority for attorney’s fees)