6 Conn. App. 180 | Conn. App. Ct. | 1986
The defendants, Donald H. Smith
The plaintiff, Pero Building Company, Inc., brought an action to foreclose a mechanic’s lien it had filed when the defendants Donald H. Smith and Leila Smith failed to remit the balance of the payments due under a contract with the plaintiff for the construction of a two family house on property which they owned. The Smiths answered and filed a counterclaim alleging that the plaintiff had performed the contract negligently, had breached the contract and had filed a mechanic’s lien in violation of an express provision of the contract.
“The purpose of the mechanic’s lien is to give one who furnishes materials or services ‘the security of the building and land for the payment of his claim by making such claim a lien thereon . . . .’ ” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981), quoting Purcell, Inc. v. Libbey, 111 Conn. 132, 136, 149 A. 225 (1930). The statutory provision of such a lien should be liberally construed so as to implement reasonably and fairly the statute’s remedial intent. H & S Torrington Associates v. Lutz Engineering Co., supra.
General Statutes § 49-35b (a) provides in part that “[u]pon the hearing held on [an] application or motion [for reduction or discharge of a mechanic’s lien], the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien.” The probable cause standard embodied in the statute is analogous to that provided in the statutory provisions relating to prejudgment remedies. See General Statutes § 52-278a et seq. Cases which have interpreted this standard as it relates to such remedies are instructive in the present matter as no definition, either statutory or by case law, has been formulated for a probable cause standard under the mechanic’s lien statute.
“The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine ‘whether or not there is probable cause to sustain the validity of the plaintiff’s claim’; General Statutes § 52-278d (a); that is to say ‘probable cause
This court’s role in reviewing a trial court’s action upon such a motion is circumscribed even further. Solomon v. Aberman, supra, 364. The trial court is vested with broad discretion in determining whether there is probable cause to grant such remedies. Id.; Price Saver, Inc. v. Maynard, 5 Conn. App. 90, 91, 496 A.2d 991 (1985). We are merely to determine whether the trial court’s decision was reasonable, and we will not upset the decision in the absence of clear error. Solomon
In the present action, the plaintiff, by clear and unambiguous language, expressly agreed with the Smiths not to file a mechanic’s lien on their property. The language used could not be more clear: “The CONTRACTOR agrees that no mechanic’s claims or liens will be filed or maintained by CONTRACTOR against the dwelling or other improvements to be constructed or against the PROPERTY.” We recognize that, ordinarily, whether the plaintiff waived his right to a mechanic’s lien is a question of fact to be determined by the trier. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 500 A.2d 1336 (1985); see Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a). Where, however, there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. See Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985). In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. See Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985).
We conclude that because the language of the agreement between the parties was clear and definitive and because the intention of the parties was unmistakable, the trial court could not reasonably have construed such
We find no merit to the plaintiff’s contention that due to the Smiths’ alleged breach of contract, the waiver clause of the parties’ agreement was unenforceable. The right to a mechanic’s lien is not a contractual right, rather it is a statutory right available to secure, as well as to enforce, payment for materials and labor rendered. Lampson Lumber Co. v. Rosadino, 141 Conn. 193, 196, 104 A.2d 362 (1954); Purcell, Inc. v. Libbey, supra; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 239, 142 A. 847 (1928). The effect of a waiver clause is to limit the avenues available to the plaintiff to collect for such material and labor. Once the statutory right to a mechanic’s lien has been waived, there is no provision under the statute for the revival of that right upon the breach of a contract. See General Statutes § 49-33 et seq.
The plaintiff’s argument that there was no consideration given for the waiver provision is likewise without merit. The waiver provision was bargained for and was part of the parties’ original agreement and was therefore given in exchange for the original consideration.
We conclude that the court correctly applied the law in refusing to discharge the mechanic’s lien filed by the defendant Gerrity. A contractor cannot bargain away the lien rights of subcontractors or materialmen who are not themselves privy to the contractor’s agreement and who do not agree with the general contractor to waive their rights or to adopt the waiver provision as incorporated in the contract between the general con
There is error in part, the judgment is set aside as to the plaintiffs mechanic’s lien and the case is remanded with direction to grant the Smiths’ application to discharge that lien.
Upon the death of Donald H. Smith, Leila Smith was substituted as a defendant in her capacity as executrix of her husband’s estate.
General Statutes § 49-35c (a) provides that an order entered by the court denying an application to discharge a mechanic’s lien is “deemed a final judgment for the purposes of appeal.”
Paragraph 15 of the contract provides: “The CONTRACTOR agrees that no mechanic’s claims or liens will be filed or maintained by CONTRACTOR against the dwelling and other improvements to be constructed or against the PROPERTY. Further, CONTRACTOR in contracting with any subcontractors or materialmen, will in such contracts provide that such subcontractors or materialmen shall not file or maintain any mechanic’s claims or liens for work done or materials furnished upon the PROPERTY for the purpose of work herein contracted to be performed, including orders, and CONTRACTOR further agrees to indemnify and save OWNER harmless from any costs, expenses, attorneys fees, loss or damage incurred by OWNER by the filing of liens by subcontractors or materialmen.”