192 Conn. 10 | Conn. | 1984
The plaintiff brought suit pursuant to General Statutes § 49-51
On appeal, the plaintiff claims that the requisite notice was given in respect to each lien, and that the liens are invalid because (1) they are not supported by “an unsatisfied judgment obtained in any court of this state . . .”
The facts are as follows: On December 23, 1980, a judgment was entered in the Cumberland County Superior Court of Maine awarding the plaintiff $14,800 on its complaint while also awarding the defendant $68,414
On February 2,1981, the plaintiff filed an appeal with the Maine Supreme Court. While the appeal was pending, the plaintiffs counsel sent a letter to the defendant’s counsel, John Slane, Jr.,
As the moving party, the plaintiff had the burden of establishing compliance with this statutory requirement. See Hartford Trust Co. v. West Hartford, 84 Conn. 646, 81 A. 244 (1911); Windsor Properties, Inc. v. Great Atlantic & Pacific Tea Co., 35 Conn. Sup. 297, 408 A.2d 936 (1979). In an effort to meet its burden on the issue, the plaintiff introduced evidence that the defendant’s former counsel had received a letter from its counsel, pertaining to the first lien.
Considering the paucity of evidence presented to the trial court on the issue, we cannot find that the court was clearly erroneous in reaching its determination. See Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The evidence demonstrated only that a letter, the terms of which are not clearly established, had been sent to the lienor’s attorney and not to the lienor. Unlike many of our statutes which expressly provide in the alternative for notice to either the attorney or the party he represents in analogous statutory proceedings; see General Statutes § 52-306 (notice of application to dissolve attachment); General Statutes § 52-284 (attachment against nonresident); § 49-51 specifies that written notice be given “to the lienor at his last known address.” Moreover, there was no evidence presented that the letter was sent by registered or certified mail. The court was not obliged to find as a matter of law that the plaintiff had established sufficient facts to meet its burden of proof on the issue of notice.
There is no error.
General Statutes § 49-51 provides: “Any person having an interest in any real estate described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien in the office where recorded. If that request is not complied with in thirty days, that person may bring his complaint to the court which would have jurisdiction of the foreclosure of the lien, if valid, claiming such discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater. A certified copy of the judgment of invalidity recorded on the land records of the town where the certificate of lien was filed fully discharges the lien.”
The motion to open and vacate was filed within the twenty-day appeal period, thereby extending the time for filing an appeal. See Practice Book § 3007.
General Statutes § 49-44 provides in part: “Any suitor having an unsatisfied judgment obtained in any court of this state or of the United States within this state, may cause to be recorded, in the town clerk’s office in the town where the land lies, a certificate signed by the judgment creditor, his attorney or personal representative, substantially in the form following:” But see General Statutes § 52-605 (b) (judgment registered pursuant to Uniform Enforcement of Foreign Judgments Act treated as judgment of this state). The judgment for which the liens were filed in this case was obtained in a Maine trial court.
Maine Rule of Civ. Proc. 62 (a) provides for a thirty-day automatic stay; Rule 62 (e) provides for an automatic stay during the course of an appeal. See also Practice Book § 3065.
The judgment was not formally correct. On appeal the Supreme Court of Maine modified the judgment, resulting in a net award to the defendant of $53,614. See Guilford Yacht Club Assn., Inc. v. Northeast Dredging, Inc.,
General Statutes § 52-605 (a) provides for the enforcement of foreign judgments by filing a “certified copy of [the] foreign judgment in the court in which enforcement of such judgment is sought . . . .” We note § 52-605 (a) also requires a judgment creditor to file “certification . . . that the enforcement of such judgment has not been stayed . . . .” In light of the automatic stay of thirty days following the date of the Maine trial court judgment; see footnote 4, supra; it is difficult to see how the defendant complied with this provision. In our disposition of this case, however, we need not decide whether failure to comply with § 52-605 (a) affects the validity of the lien.
Attorney John Slane, Jr., filed the judgment on behalf of the defendant. He also initially represented the defendant in the proceedings below. He was no longer the defendant’s counsel, however, when the action was tried.
At trial and on appeal, the plaintiff’s counsel candidly admitted that no written notice had ever been sent to the defendant-lienor requesting the second lien to be removed. Instead, the plaintiff’s counsel maintains that, because the liens are identical except with respect to time, the filing
The testimony of Attorney John Slane, Jr., follows:
“DIRECT EXAMINATION BY MR. SHERWOOD:
“Q. Mr. Slane, you are the attorney for Northeast Dredging?
“Q. Were you the attorney in May of 1980?
“A. Yes, I was.
“Q. Did you receive any notification from me, after the lien was filed, requesting that it be removed?
“A. Which lien are you talking about?
“Q. The first lien.
“A. The first lien, yes, I do recall receiving a letter from you.
“Q. And did you in fact, as a result of this, remove the lien or release it?
“A. No, I didn’t.”