39 Conn. App. 544 | Conn. App. Ct. | 1995
Lead Opinion
The defendant Patrick R. Pacelli appeals from the judgment of strict foreclosure of a mechanic’s lien rendered in favor of the plaintiff. Pacelli’s sole claim is that the trial court improperly awarded damages for
On December 28, 1987, the plaintiff, a construction company, entered into contracts with Pacelli and three others who were principals in Mary Ellen Drive Associates and T.K.P. Associates, two general partnerships. The contract was for site development of a residential subdivision known as Nicole Estates in Milford. The plaintiff contracted to build the roadways for the subdivision. On March 23, 1988, the plaintiff and the defendants signed a waiver of mechanic’s lien related to the subdivision. On April 1, 1988, the plaintiff commenced work. The plaintiff stopped work on March 2, 1989, due to nonpayment.
On September 13, 1989, the plaintiff commenced this action against several defendants seeking to foreclose the mechanic’s lien in the original principal amount of $400,164. The complaint, and each of the amended complaints as filed,
On appeal, Pacelh argues that the plaintiff made no claim in the complaint for damages stemming from work performed after the fihng of the lien. The defendants filed no pleading, seeking to contest the legal sufficiency of the allegations of the complaint
General Statutes § 49-33
The plaintiff argues that it returned to perform work because it was obligated to do so, having posted a performance bond. It argues that the defendants were aware of the continuing improvement work, and derived benefit from this work. We agree that to hold that the lien does not attach to the subsequent work would penalize the plaintiff and require additional cost and expense for filing additional liens each time the plaintiff returned to perform additional work. “[I]t is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985).
Our mechanic’s hen statute is to be liberally construed so as reasonably and fairly to carry out its remedial intent, that is, to provide a contractor with security
The facts of the allegations contained in the complaint must be construed in a light most favorable to the plaintiff. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). Our review of the pleadings leads us to conclude that the trial court acted properly in rendering judgment on the basis of the pleadings and evidence as presented for work done to the property after the filing of the lien.
The judgment is affirmed.
In this opinion O’CONNELL, J., concurred.
The total of the plaintiffs claim for materials furnished and services rendered was $1,446,389. As of March 2, 1989, the plaintiff had received payments totaling $896,225, leaving a balance of $550,164.
The $150,000 worth of work left to complete the job was applied as a credit by the plaintiff to the balance due prior to the filing of the lien.
The plaintiff filed amended complaints on October 1, 1990, October 18, 1991, and April 10, 1992.
The amended complaint filed on April 10,1992, alleged that “[t]he plaintiff commenced to furnish materials and services on April 21, 1988 and ceased furnishing materials and rendering such services on or about March 2, 1989, but has returned to perform additional services since the filing of the Mechanic’s Lien.”
The plaintiffs demand for relief sought:
“1. The amount, legal interest of property in demand is greater than Fifteen Thousand ($15,000) and 11/100 Dollars, exclusive of interest and costs.
“2. A foreclosure of the mechanic’s lien.
“3. Immediate possession of the premises.
“4. Damages within the jurisdiction of the court.
“5. A deficiency judgment against the defendants.
“6. Reasonable attorney’s fees and costs.
“7. Such other and further equitable relief as may be required.”
The defendant does not challenge either of these findings on appeal.
The trial court increased the credit for work left to complete the job prior to filing the lien from $150,000 to $235,000, leaving a balance of $315,164. The court mitigated the amount of damages due and owing the plaintiff after reviewing the data on the work that was performed.
The defendant has no burden to move to strike a legally inadequate complaint; Stavnezer v. Sage-Allen Co., 146 Conn. 460, 461, 152 A.2d 312
General Statutes § 52-91 provides: “There shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.”
General Statutes § 49-33 provides in pertinent part: “(a) If any person has a claim for more than ten dollars for materials furnished or services rendered ... in the site development or subdivision of any plot of land, and 1he claim is by virtue of an agreement with or by consent of the owner
Concurrence Opinion
concurring. I concur in the result reached by the majority because I agree that the allegations of the complaint and the prayer for relief are sufficient to support the trial court’s judgment awarding damages. I write separately because the issue of whether the mechanic’s lien secured the debt for work performed after the lien was filed was not before us.
The appeal raises only one issue: “Did the court err in awarding $87,441.42 in damages to plaintiff for posthen work when the complaint sounded only in foreclosure of a mechanics lien and when the case was tried solely on that theory?” In disposing of this issue, there is no need to address the mechanic’s lien at all. The $315,164 debt that the lien secured was separately stated in the judgment, and it did not include the $87,441.42 that was awarded as damages. The court rendered a judgment foreclosing the mechanic’s lien and rendered a separate