Opinion
CV 02 0464431
November 14, 2003
MEMORANDUM OF DECISION
This matter came to the court by writ, summons and complaint dated May 7, 2002, for foreclosure of a mechanic's lien filed by the plaintiff, Jay Alpert Architect, AIA, P.C. (Alpert), against the defendants, Per Trellevik and Sheri Trellevik (Trellevik), Panza Builders (Panza) and the Wilton Bank Trust Company (Wilton). Thereafter, Panza filed a cross complaint and amended cross complaint against Trellevik seeking foreclosure of Panza's mechanic's lien and claiming unjust enrichment. Trellevik has answered and filed special defenses, as well as, a counterclaim against Alpert. They have also filed an answer and special defenses to the First Count of Panza's cross complaint, but they have filed no answer or special defenses to the Second Count contained in Panza's amended cross complaint. Trellevik's counterclaim and cross complaint both seek damages.
The matter was tried to the court on various dates commencing April 8, 2002. Evidence concluded on April 16, 2002. The parties submitted post-trial memorandums of law, the last of which were filed on May 29, 2003. Thereafter, on July 18, 2003, the court sua sponte notified the parties that it would entertain supplemental post-trial briefs regarding the court's subject matter jurisdiction, limited to the sole issue as to whether the Panza mechanic's lien complies with the Supreme Court's holding in Red Rooster Construction Co. v River Associates, 224 Conn. 563, 620 A.2d 118 (1993). More specifically, the court notified the parties that it wanted their respective positions concerning whether or not the mechanic's lien signed by John Panza was properly sworn to, within the meaning of General Statute § 49-34, as discussed in Red Rooster Construction Co. The court allowed all parties to file supplemental post-trial briefs on or before August 15, 2003 addressing the validity of Panza's mechanic's lien. Panza Builders Sons, Inc. and the Trelleviks filed supplemental post-trial briefs on this issue, and the plaintiff Alpert did not.
The issue of the validity of the Alpert mechanic's lien was first raised at trial, and the plaintiff Alpert and the property owners, Trelleviks, have addressed that issue in the legal arguments contained in their respective post-trial briefs.
I. The Alpert and Panza Mechanics' Liens
The evidence establishes that the plaintiff Alpert rendered architectural services to the Trelleviks in the renovation of their home at 60 Orchard Road, Woodbridge, Connecticut, pursuant to an oral agreement with the Trelleviks. Alpert commenced the performance of his services in March 2001 and stopped work on said premises on March 2, 2002, as a result of a fee dispute with the Trelleviks. Alpert claims a balance due and owing for his architectural services as of March 20, 2002, in the amount of $7,500. On March 21, 2002, to secure this claimed balance, Alpert caused a certificate of mechanic's lien in the amount of $7,450 to be filed in the Woodbridge Town Clerk's Office. A true and attested copy of the mechanic's lien certificate was served on both Mr. and Mrs. Trellevik on March 21, 2002. Alpert commenced suit against Per and Sheri Trellevik in May 2002 to collect this sum.
The Trelleviks, thereafter, filed their disclosure of defense, answer and special defenses to Alpert's claims, as well as, a "counterclaim." In summary, the Trelleviks claim that Alpert failed to perform his services in accordance with the terms of the oral agreement of the parties, and that as a result, the Trelleviks have incurred money damages in that Alpert failed to properly supervise and control the construction project. Additionally, the Trelleviks claim that they have paid Alpert in full in accordance with the agreement terms. The Trelleviks further claim a setoff in an amount equal to the amount they were forced to spend as a result of Alpert's approval of "change orders" at the project without their authorization.
The Panza claim for a foreclosure of its mechanic's lien is that pursuant to a written contract with the Trelleviks, Panza furnished materials and labor for renovations to the Trelleviks' home, as well as, the construction of an addition to the home. Panza's complaint claims a sum due and owing from the Trelleviks in the amount of $82,132 for its services. On November 7, 2002, Panza filed an amended cross complaint, wherein, the amended cross complaint consisted solely of a Second Count for unjust enrichment. The relief sought was again, a foreclosure of mechanic's lien; possession of the premises; costs of collection; and attorneys fees. Additionally, Panza in this amended complaint consisting of only a Second Count, further claims "money damages" and other equitable relief. The court is left to question whether Panza has abandoned the foreclosure of mechanic's lien and is pursuing only the unjust enrichment claim, or whether the unjust enrichment claim is in addition to the foreclosure of mechanic's lien claim. The court also notes that the Trelleviks have never responded to this amended complaint by way of filing any answer to the amended complaint as it relates to a claim of unjust enrichment. All special defenses filed by the Trelleviks, especially those relating to non-compliance with the Home Improvement Act, are addressed to Panza's original complaint containing only the First Count. The Trelleviks have not filed any special defenses to the claim of unjust enrichment.
The Trelleviks in their disclosure of defense and their answer and special defenses to the Panza complaint, consisting of only the First Count allege that (1) Panza has failed to perform in accordance with the agreement; (2) Panza's claim is excessive; (3) Panza has been paid in full; (4) Panza has failed to perform in a workman-like manner, in that the work is incomplete and defective; and (5) Panza has not used proper building materials. They also claim that the contract violated the Home Improvement Act. Additionally, the Trelleviks have filed a "cross complaint" against Panza requesting money damages on grounds similar to those allegations contained in their disclosure of defense and special defenses.
As both Alpert and Panza have filed mechanic's liens against the Trelleviks for claimed balances due, and have brought their respective claims requesting a foreclosure of said mechanics' liens, the court will review these mechanics' liens prior to determining the merits of Alpert's and Panza's allegations regarding monetary sums they claim are owed by the Trelleviks. The court undertakes this review of the mechanics' liens to determine if defects in the execution of the certificate of each mechanic's lien requires these liens to be discharged.
The right to file a mechanic's lien and the provisions regarding the content and form of the lien and the filing thereof are governed by the provisions of General Statutes § 49-33 and § 49-34. General States § 49-39 governs the time limitations of a mechanic's lien and the time within which an action to foreclose such lien must be commenced. General Statutes §§ 49-35a and 49-35b outline procedures by which the Trelleviks could have moved to discharge Alpert's and Panza's mechanics' liens prior to trial. Although the Trelleviks did not avail themselves of a pretrial hearing on a motion to discharge the liens pursuant to § 49-35a, the court does not find that fatal to their efforts to have the liens declared invalid at trial. This pretrial procedure allows for a prompt and relatively inexpensive pretrial determination of the validity of a mechanic's lien prior to the trial of a foreclosure action. New England Savings Bk. v. Meadow Lakes Realty Co., 235 Conn. 663, 668 A.2d 712 (1996). See also, Pero Building Co. v. Smith, 6 Conn. App. 180, 183, 504 A.2d 524 (1986). General Statutes § 49-35a(c) provides that "if an action for foreclosure of the lien is pending before any court, any party to that action may at any time prior to trial, unless an application under subsection (a) of this section has previously been ruled upon, move that the lien be discharged or reduced." General Statutes § 49-35a does not provide that it is mandatory that an attack on the validity of a mechanic's lien can only be asserted at a pretrial hearing to discharge said lien. However, in determining whether a mechanic's lien is invalid the court must apply the burden of proof directives set forth in § 49-35b which requires that the invalidity of the lien must be established by clear and convincing proof.
Sec. 49-33 reads in relevant part:
(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land is subject to the payment of the claim.
(b) The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36.
(c) If any such liens exist in favor of two or more persons for materials furnished or services rendered in connection with the same construction, raising, removal or repairs of any building or any of its appurtenances, or in the improvement of any lot, or in the site development or subdivision of any plot of land, no one of those persons shall have any priority over another except as hereinafter provided. CT Page 13097
(d) If any instrument constituting a valid encumbrance upon such land other than a mechanic's lien is filed for record while the building is being constructed, raised, removed or repaired, or the lot is being improved, or the plot of land is being improved or subdivided, all such mechanic's liens originating prior to the filing of that instrument for record take precedence over that encumbrance and no such mechanic's lien shall have priority over any other such mechanic's lien. That encumbrance and all such mechanic's liens shall take precedence over any mechanic's lien which originates for materials furnished or services rendered after the filing of that instrument for record, but no one of the mechanic's liens originating after the filing of that instrument for record has precedence over another. If any lienor waives or releases his lien or claim of precedence to any such encumbrance, that lien shall be classed with and have no priority over liens originating subsequent to that encumbrance.
(i) Any mechanic's lien may be foreclosed in the same manner as a mortgage.
Sec. 49-34. Certificate of lien to be recorded and notice given to owner reads as follows:
A mechanic's lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.
(Emphasis added.)
Sec. 49-39 reads as follows:
A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross complaint or counterclaim, and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law. An action to foreclose a mechanic's lien shall be privileged in respect to assignment for trial. With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation.
For the reasons that follow, the court finds that the mechanic's lien filed by Alpert does not comply with the provisions of § 49-34, in that the lien was not signed by or sworn to, by the "claimant," Jay Alpert. The mechanic's lien, therefore, is invalid.
Alpert's certificate of mechanic's lien was signed and sworn to by his attorney upon the request of Alpert. Alpert testified that his attorney was neither an officer, director, shareholder or otherwise associated with Jay Alpert Architects, AIA, P.C. The court also finds that the mechanic's lien filed by Panza is defective in that the lien was not properly sworn and subscribed to by the claimant as the claimant did not sign a statement swearing to the truth of the facts contained in the certificate as required by the decision in Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 620 A.2d 118 (1993).
The court must approach the questions raised regarding the interpretation of statutes according to the well-established principles of statutory construction designed to further the fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986). The court must look to the words of the statute; to the legislative history; the circumstances surrounding its enactment; to the legislative policy it was designed to implement; and to its relationship to existing legislation and any common-law principles governing the same subject matter. Dart Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987); Texaco Refining Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987); State v. Jason B., 248 Conn. 543, 729 A.2d 760 (1999).
With any issue of statutory interpretation, our initial guide is the language of the statute itself. Frillici v. Westport, 231 Conn. 418, 430-32, 650 A.2d 557 (1994). If its language in drafting and enacting a statute is clear and unambiguous, there is no room for alteration of the legislative decision by the judicial branch. Ambriose v. William Raveis Real Estate, Inc., 226 Conn. 757, 764-65 (1993). It is assumed that the words themselves express the intent of the legislature. Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity." State v. Perruccio, 192 Conn. 154, 163 n. 4, 471 A.2d 632 (1984).
"A corollary of the above rule of construction is that the intent of the legislature is to be found not in what the legislature meant to say, but in the meaning of what it did say." Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981). The words used in statutes "shall be construed according to the commonly approved usage of the language." Simmonette v. Great American Ins. Co., 165 Conn. 466, 471, 338 A.2d 453 (1973); Caulkins v. Petrillo, 200 Conn. 208, 215-16, 510 A.2d 1329 (1986).
The court in applying the "plain meaning rule," set forth above, is aware that this rule was abandoned in the decision in State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003), which required the court to not only look to the language of the statute but to proceed further to the "legislative history and the circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." Id. at 577-78; Bender v. Bender, 258 Conn. 733, 741, 785 A.2d 197 (2001). "This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning. (Emphasis in original; internal quotation marks omitted.)" Id.
However, the legislature in response to State v. Courchesne, supra, 262 Conn. 537-38, has since enacted Public Act 03-154, effective October 1, 2003, which provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Thus, this court, respecting the will of the legislature, applies the plain meaning rule to determine whether Alpert's attorney could sign Alpert's mechanic's lien, swearing to the truth of the facts contained therein.
The court also applies well-settled rules that apply to interpretation of the mechanic's lien statutes. "The guidelines for interpreting mechanic's lien legislation are well established. Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction." (Citations omitted; internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn. App. 474, 480-81, 822 A.2d 366 (2003); Ceci Bros., Inc. v Five Twenty-One Corp., 51 Conn. App. 773, 777, 724 A.2d 541 (1999). New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611, 706 A.2d 465 (1998).
The court looks to two cases for guidance in determining the definition of "claimant" as used in General Statutes § 49-34(1)(C). In J.C. Penney Props., Inc. v. Peter M. Santella Co., 210 Conn. 511, 514, 555 A.2d 990 (1989), the court discussed the importance of swearing to the truth of the statements contained in the mechanic's lien. "It is not uncommon for the legislature to require that certain documents be acknowledged or verified. Such an acknowledgment is a public declaration or a formal statement of the person executing an instrument made to the official authorized to take the acknowledgment that the execution of that instrument was his free act and deed; . . . On the other hand, a requirement that a document be `sworn to' contemplates the execution of an affidavit that the facts contained in it are true. 3 Am.Jur.2d 380, Affidavits, 2." (Citations omitted.) State v. Wolfe, 156 Conn. 199, 205, 239 A.2d 509 (1968). "An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. 1 Am.Jur. 3162, 34370; 1 Words Phrases 620; Pittis v. Abrams, 129 N.Y.S.2d 216, 217 [1954]. A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. 1 Am.Jur. 94213, 949; 44 Words Phrases 138, 142." Id. at 514; Bell v. Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn. Sup. 296, 298, 182 A.2d 339 (1962). The court in J.C. Penney Props., Inc. v. Peter M. Santella Co., supra 210 Conn. 511, 518, held that the mechanic's lien at issue in that case was invalid because it did not contain a written oath that it had been sworn to by the signer.
The second case is Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 620 A.2d 118 (1993). In Red Rooster, the court determined that because the mechanic's lien statute, General Statutes § 49-34 required the performance or execution of an oath swearing that the facts contained in a mechanic's lien certificate are true, and in light of the fact that an oral oath was not administered to the plaintiff's president at the time the lien was notarized, that the plaintiff's president did not sign a statement swearing to the truth of the facts contained in the certificate. Pursuant to General Statute § 1-22 and 1-23, some ceremony must be performed in making an oath or affirmation. Therefore, the court determined that the mechanic's lien was not sworn to. Accordingly, the court found that the lien was invalid and the judgment discharging the lien was affirmed. "Section 49-34 provides that a mechanic's lien is invalid unless the certificate of the lien filed on the land records is subscribed and sworn to by the claimant. [A] requirement that a document be sworn to contemplates the execution of an affidavit that the facts contained in. it are true. J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 513-14, 555 A.2d 990 (1989). An oath . . . signifies the undertaking of an obligation to speak the truth at a time [that] may deeply affect the rights and the character of individuals. State v. Grant, 176 Conn. 17, 24, 404 A.2d 873 (1978). Consequently, we have held that the mechanic's lien statute requires the performance or execution of an oath swearing that the facts contained in the document are true." (Internal quotation marks omitted) Red Rooster Construction Co. v. River Associates, supra, 224 Conn. 563, 577-78; J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra.
Sec. 1-22. Ceremony.
The ceremony to be used, by persons to whom an oath is administered, shall be the holding up of the right hand; but when any person, by reason of scruples of conscience, objects to such ceremony or when the court or authority by whom the oath is to be administered has reason to believe that any other ceremony will be more binding upon the conscience of the witness, such court or authority may permit or require any other ceremony to be used.
Sec. 1-23. When affirmation may be used.
When any person, required to take an oath, from scruples of conscience declines to take it in the usual form or when the court is satisfied that any person called as a witness does not believe in the existence of a Supreme Being, a solemn affirmation may be administered to him in the form of the oath prescribed, except that instead of the word" swear" the words "solemnly and sincerely affirm and declare" shall be used and instead of the words "so help you God" the words "upon the pains and penalties of perjury or false statement" shall be used.
A claimant is defined as "one who claims; a voluntary applicant for justice." Ballentine's Law Dictionary (3rd Ed. 1969). Claimant has also been defined as "one that asserts a right . . ." Merriam-Webster Dictionary (11th Collegiate Ed.) A review of various statutes reveals that when the word claimant is used it refers to the person having the right to maintain a claim or cause of action. "A long-standing rule of statutory construction is that if a statute makes use of words [that] have an accepted meaning at the common law they ought, in the absence of other controlling reasons, to be expounded and received with that meaning." (Internal quotation marks omitted.) Steelcase, Inc. v. Crystal, 238 Conn. 571, 584, 680 A.2d 289 (1996), quoting Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 563, 570. In the case of the Alpert certificate of mechanic's lien, Alpert the "claimant" did not sign the certificate, nor did he swear or affirm that the facts contained therein were true. Alpert testified that his attorney had not seen any documentation to support the facts that the attorney swore to. The requirement of § 49-34 that the mechanic's lien certificate be sworn and subscribed to by the claimant clearly contemplates that the claimant is the person maintaining the claim. There is no ambiguity in the statutory language of § 49-34(1)(C). The claimant is the person "performing the services or furnishing the materials." The seriousness of the requirement that there be a performance or execution of an oath by the claimant swearing that the facts contained in a mechanic's lien certificate are true is emphasized by the decisions in Red Rooster Construction Co. v. River Associates, supra, 224 Conn. 563, and J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 511. The Trelleviks have established by clear and convincing proof that Alpert mechanic's lien is invalid and it is hereby ordered discharged. Accordingly, as the sole basis of the plaintiff Alpert's action is for a foreclosure of the mechanic's lien the court lacks further jurisdiction to entertain the plaintiff's claim, and the Alpert claim is hereby dismissed.
In determining the validity of the Panza mechanic's lien, the court once again turns to Red Rooster Construction Co. v. River Associates, supra, 224 Conn. 563, and J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 511 for guidance. The defendants Trellevik argue that § 49-34(1)(C) requires that the claimant John J. Panza must sign a statement which contains an oath that the statements in the lien are true and that because the Panza lien does not contain such a statement, it is therefore, invalid.
The relevant portion of the Panza lien concerns the bottom portion of the certificate where John J. Panza affixed his signature and it reads as follows:
Whereof, I John J. Panza, President of Panza Builders Sons, Inc. have hereunto set my hand this 5th day of April 2002.
Panza Builders Sons, Inc. By John J. Panza, President State of Connecticut ss: West Haven April 5, 2002 County of New Haven Subscribed and sworn before me, Marie L. Natalino, Notary Public
In Red Rooster Construction Co. v. River Associates, Inc., supra at 579, the Connecticut Supreme Court held that the mechanic's lien was invalid as three conditions were present.
In light of the fact that (1) an oral oath was not administered, (2) Red Rooster's president did not sign a statement swearing to the truth of the facts contained in the certificate, and (3) 1-22 requires that some ceremony be performed in making an oath, the trial court properly concluded that the certificate was not "sworn to." The lien is therefore invalid.
The court reasoned its decision by the principle that validating a mechanic's lien certificate ". . . without any evidence the claimant performed some act or ceremony indicating that the claimant consciously undertook the obligation of an oath would invite confusion, delay and uncertainty . . ." Id., quoting Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 511, 518. In Red Rooster, the president of the company signed the certificate in the notary's presence and the notary then notarized the document. The notary did not administer an oral oath, nor did the president sign an oath. The notary's signature on the certificate appeared under a passage that stated, that the president appeared and made solemn oath that the facts stated in the certificate were true. The president's signature did not follow any passage stating that it was his solemn oath that the facts stated in the certificate were true. His signature merely appears at the end of the body of the certificate stating the facts allegedly entitling him to a mechanic's lien.
In J.C. Penney Properties, Inc. v. Peter M. Santella, supra, the defendant's officer who signed the certificate testified that an attorney had administered an oath prior to the signing of the certificate. The attorney also testified that he had taken the officer's statement under oath. The court however ruled that this was insufficient because the certificate did not contain a written oath. Thus, it did not satisfy the requirement of § 49-34(1)(C) requiring that such a certificate be sworn to by the claimant. The court stated that "the oath must appear in writing on the certificate of mechanic's lien for it to be valid under the statute." Id. at 511. "[A] requirement that a document be `sworn to' contemplates the execution of an affidavit that the facts contained in it are true. 3 Am.Jur.2d 380, Affidavits, 2." Id. at 513-14, quoting State v. Wolfe, 156 Conn. 199, 205, 239 A.2d 509 (1968). The court went further in stating "An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. 1 Am.Jur. 3162, 34370; 1 Words Phrases 620; Pittis v. Abrams, 129 N.Y.S.2d 216, 217 [1954]. A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. 1 Am.Jur. 94213, 949; 44 Words Phrases 138, 142. Bell Zajicek, Inc., v. Heyward-Robinson Co., 23 Conn. Sup. 296, 298, 182 A.2d 339 (1962)." Id. at 514.
"In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The defendant argues that the statute does not require that the swearing to the contents of the certificate be in writing. In considering a statute that authorizes a certificate of mechanic's lien in writing, however, we cannot ascribe to the legislature an intent that an essential part of this certificate need not be in writing. Such a certificate may take precedence over prior encumbrances and may furnish the basis for a foreclosure of the subject premises. General Statutes § 49-34 describes the contents of such a certificate with great detail. To validate a certificate without a written oath would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public. Id. at 518.
The court finds that the words "Subscribed and sworn before me" followed by the notary public's signature is insufficient, standing alone, to satisfy the requirements of Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 620 A.2d 118 (1993), and J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989). See also First Constitution Bank v. Harbor Village Ltd. Prtn., 230 Conn. 807, 822, 646 A.2d 812 (1994).
A review of the trial transcript discloses that Panza Builders Sons, Inc., offered no testimony by the affiant John J. Panza, its president, to detail the formalities of his signing of the mechanic's lien; nor was any evidence offered by the notary public who notarized John J. Panza's signature on the face of the lien. There was no testimony by either Panza or any notary public regarding the formalities of the lien signing ceremony, although the affiant did testify during the trial, as to other matters. The court, therefore, finds that the mechanic's lien filed by Panza Builders Sons, Inc. is invalid and cannot form the basis of a foreclosure of mechanic's lien suit. The Panza claim for a foreclosure of its mechanic's lien contained in the First Count of the cross complaint is therefore dismissed and the lien is ordered discharged.
The court dismisses the complaint by Alpert and the first count of amended cross complaint of Panza, as the court has no subject matter jurisdiction to enter any award that would be predicated on the invalid mechanic's liens filed by Alpert and Panza. "Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver . . ." In Re Shonna K., 77 Conn. App. 246, 251, 822 A.2d 366 (2003).
The amended cross complaint of Panza dated November 5, 2002, alleges unjust enrichment. The amended cross complaint does not refer to the original cross complaint, in that it does not refer to or repeat the First Count. It begins with and recites only the Second Count for unjust enrichment. Paragraph 9 of the Second Count states, "Panza claims damages as a result of the Trelleviks' failure to pay for Panza's services and materials."
In granting a motion to dismiss for failure to comply with the filing requirements of General Statutes § 49-39, the Appellate Court stated that an invalid mechanic's lien is discharged as a matter of law. H.G. Bass Associates v. Ethan Allen, Inc., 26 Conn. App. 426, 430, 601 A.2d 1040 (1992). See also, Fisher Skylights, Inc. v. Mashantucket Pequot Indian Tribe, Superior Court judicial district of New London at Norwich, Docket No. 104741 (July 11, 1994) (Leuba, J.), 9 CSCR 843, citing H.G. Bass Associates v Ethan Allen, Inc., 26 Conn. App. 426, 430, 601 A.2d 1040 (1992). "Where such a lien has been discharged as a matter of law, a court is without jurisdiction to enter an award that is predicated on the lien's validity." Richard A. Banks Co. v. Bradley, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 094968 (March 23, 1993 Lewis, J.) ( 8 Conn. L. Rptr. 511), citing H.G. Bass Associates v. Ethan Allen, Inc., supra, 432. See also Monahan v. Godfrend, Superior Court, Judicial District of Stamford-Norwalk at Stamford, No. CV920126750S (Apr. 20, 1993) (Rush, J.) ( 8 Conn. L. Rptr. 795) (motion to dismiss action to foreclose mechanic's lien granted where lien not filed within time period mandated by General Statutes § 49-34); Park Ridge Owners Assn. v. MBM, Inc., Superior Court, judicial district of New Haven at New Haven, No. CV 00-0444968 S (Apr. 12, 2002) (Zoarski, J.) (failure to name the proper owner on the face of the mechanic's lien); Steeltech Building Products v. Viola, Superior Court, judicial district of Hartford at Hartford, Docket No. 580266 (May 15, 2000, Wagner, J.); Raymond's Building Supply v. Santopietro, Superior court, judicial district of Waterbury, Docket No. 131319 (August 15, 1996) (Pellegrino, J.); ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 263-64, 822 A.2d 366 (2003).
"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings." (Citations omitted; internal quotation marks omitted.) ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 263-64 (2003) 822 A.2d 366, quoting Speight v. Office of Victim Services, 61 Conn. App. 151, 154, 763 A.2d 25 (2000).
A party may challenge a court's subject matter jurisdiction at any time, and whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to [its] previous rulings. (Internal quotation marks omitted.) Berlin Batting Cages v. Planning Zoning Comm., 76 Conn. App. 199, 203, 821 A.2d 269 (2003); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). "[Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Citations omitted; internal quotation marks omitted.) In Re Jessica M., 71 Conn. App. 417, 422, 802 A.2d 197 (2002), quoting Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).
The Trellevik's failure to file a motion to dismiss regarding the Panza mechanic's lien was not a waiver of a claim of lack of subject matter jurisdiction. That claim properly may be raised at any time by the parties or by the court, Practice Book § 10-33; Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). "[W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case . . ." (Internal quotation marks omitted.) Kindl v. Department of Social Services, 69 Conn. App. 563, 565-66, 795 A.2d 622 (2002); Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 103, 674 A.2d 1335 (1996), citing Concerned Citizens of Sterling v. Sterling, supra, 204 Conn. 551, 557.
In light of the fact that the court has dismissed the claim of Alpert and Panza's First Count requesting foreclosure of mechanic's liens due to their defective mechanic's liens, the court will not consider the special defenses of the Trelleviks, including any special defense that the contract violated the Home Improvement Act, General Statutes § 20-429. Once again, it is noted that the Trelleviks have asserted special defenses relating to a violation of the Home Improvement Act only as to the First Count of the Panza cross complaint and not as to the Second Count in the amended cross complaint for unjust enrichment.
The court's ruling regarding the dismissal of the foreclosure of the mechanic's lien actions filed by Alpert and Panza concerns only whether and to what extent those parties were entitled to have the real property of the Trelleviks held in custody of the law pending final adjudication of the merits of their actions. Tyler v. Schnabel, 34 Conn. App. 216, 220, 641 A.2d 388 (1994). Because the court's rulings on the invalidity of the mechanic's liens are not a full and final determination on the merits of the Alpert and Panza claims, as well as the various special defenses filed by the Trelleviks, the rulings regarding dismissing the liens and ordering their discharge are not entitled to preclusive effect as to future actions on the debt or the special defenses relating to a violation of the Home Improvement Act. See Linden Condominium Association, Inc. v. McKenna, 247 Conn. 575, 594 (1999); see also PEI Enterprises, Inc. v. Emmanuel Baptist Church of Newington, Superior Court, judicial district New Britain at New Britain, No. CV02 0516115S, (September 16, 2003) (Robinson, J.) ( 35 Conn. L. Rptr. 487); Foti v. Chase Associates, Inc., Superior Court, judicial district of Hartford, No. CV00 0803442, (April 15, 2002) (Beach, J.), 32 Conn. L. Rptr. 15. The court however, does address and resolve certain issues between the parties when adjudicating the merits of the counterclaim filed by the Trelleviks against Alpert and the cross complaint filed by the Trelleviks against Panza Builders Sons, Inc., as well as, the Panza amended cross complaint for unjust enrichment. These actions continue to survive despite the dismissal of the foreclosure of mechanic's lien actions brought by Alpert and Panza.
II. Trellevik Counterclaim Against Alpert
Having disposed of the foreclosure of mechanic's liens claims filed by Alpert and Panza, the court is left to decide the counterclaim and cross complaint filed by Trellevik against Alpert and Panza respectively. The defendants Per E. Trellevik and Sheri Trellevik, in response to Alpert's complaint, have filed a counterclaim against Alpert alleging that they entered into an agreement to have architectural services provided by Alpert and that he failed to perform these services in accordance with the agreement. They claim that this failure to perform by Alpert caused them additional expenses in that Alpert failed to properly supervise and control the construction project. They are seeking monetary damages. They also claim that Alpert has been paid in full and that no further sums are due and owing to Alpert.
The facts reveal that the Trelleviks and Alpert entered into an oral agreement in the spring of 2001, wherein the Trelleviks hired Alpert, an architect, to prepare plans for an addition and renovations to their home. The initial agreement was for $3,000 with a final total that would not exceed $10,000. Subsequently, due to the necessity of hiring a structural engineer, Alpert incurred an additional cost of $2,600, which he billed to the Trelleviks, as part of his own bill for services. When Alpert eventually billed the Trelleviks for a sum of $15,000, they refused to pay the bill, citing the maximum quoted revised price of $10,000. Eventually the Trelleviks paid a total sum of $15,500 to Alpert. Alpert later billed the Trelleviks for an additional sum of $7,450 bringing his claim for architectural services to a total sum of $22,950. The Trelleviks have refused to pay the claimed balance of $7,450.00 and Alpert filed a mechanic's lien and a foreclosure of mechanic's lien action, which the court has now dismissed.
When hired by the Trelleviks, Alpert stated to them that a reasonable completion date for the construction would be mid-November 2001. However, when the agreement for construction was presented to the Trelleviks on a form entitled "AIA Document A101-1997, with a separate Panza agreement attached as an exhibit, the completion date was stated to be December 31, 2001. This AIA101-1997 document refers to a separate General Conditions form, but that form was not presented to the Trelleviks at the time of the signing of the construction agreement. The edition of the General Conditions form received by the Trelleviks was the 1987 edition, not the appropriate 1997 edition which would have corresponded with the AIA Document A101-1997 contract form. This 1987 edition was also not presented to the Trelleviks at the time of signing. The Trelleviks hired Panza as the builder, upon the recommendation of Alpert.
The project started slowly and in early September 2001, the Trelleviks considered terminating Panza's construction services, but were convinced by Alpert to continue the project with Panza's services. The project fell well behind schedule and required many change orders and a renegotiation of the price for the project. Despite Alpert's monitoring of the project, the Trelleviks were not provided with prices for extras and change order items in advance of performance of those items. When the contract price was modified to eliminate items, the Trelleviks were not given comparable credits for labor and materials in comparison to the prices charged for extras and additional materials and labor. For example when a window was eliminated, the Trelleviks received a labor credit of $30 per window. However when a window was added to the agreement, the labor charge was $200 per window. The court realizes that the added window may have been a different size than the eliminated window, but the Trelleviks never received any explanation why the labor charge for the additional windows was more than six times the labor charge for the eliminated windows.
After numerous complaints regarding delays, defective work and unfinished work, the Trelleviks notified Panza and Alpert by letter dated March 13, 2002, that they were terminating Panza's construction services on March 20, 2002, almost three months after the agreed-upon completion date of December 31, 2001. The court has reviewed numerous photographic exhibits and has heard the testimony of the parties and their experts and concludes that defective and unfinished work existed when the Trelleviks terminated Panza. The court, however, does not feel that the Trelleviks have sustained their burden of proof that Alpert was the cause of the damages they complain of.
While it is true that they were relying upon Alpert to assist them with the construction project, the defective and unfinished work claims are more properly directed to their cause of action against Panza, as set forth in their cross complaint against Panza, dated July 19, 2002. They have been unable to set forth in any specific manner to the court, items of damages that can be directly attributable to the claim that Alpert failed to properly monitor the construction project.
In accordance with the oral agreement entered into with Alpert, Alpert was to provide architectural plans and advice for the project, but the Trelleviks cannot be said to have understood that Alpert would provide day to day supervision of the builder. Indeed, that issue was a point of controversy when they were presented with additional billings for Alpert's services. Alpert did stop by the project on a regular basis to view how it was progressing and did attend various progress meetings with the Trelleviks and Panza. He also tried to act as a middle-man during controversies. Alpert, however, was an ineffective advocate for the Trelleviks in most of the negotiations and controversies that continually swirled around this project, and it is easy to see why the Trelleviks came to distrust him. On most issues Alpert appeared to act as an advocate for the builder, rather than his clients, the Trelleviks.
However, the Trelleviks continued to maintain a very high level of personal involvement with this project and cannot now claim to have been unaware of many of the problems. Several delays in the project can be attributed to changes in details and the scope of the project which were initiated by the Trelleviks, themselves, and their choice in using several subcontractors of their own choosing. A delay in the beginning of the project was due to the necessity of hiring a surveyor to locate the well and to move the septic system. Delays were caused by Panza's work schedule and its inability or unwillingness to provide adequate personnel to the project. The court finds that some delays in any construction project of this size and scope would not be unreasonable. In the present matter, the delays were attributable to all of the involved parties. The major dissatisfaction of the Trelleviks is with the quality of workmanship by Panza and the slow pace of Panza's unfinished work. Any claims for damages by the Trelleviks are best directed at the builder, Panza in the context of the Trelleviks' cross complaint and not at Alpert the architect.
The court finds the facts in favor of the plaintiff, Alpert, as against the defendants Trellevik for those claims contained in the defendant Trellevik's counterclaim, and judgment may enter for Alpert.
III. Trellevik Cross Complaint Against Panza Builders Sons, Inc. and Panza's Claim Regarding Unjust Enrichment
The Trelleviks have filed a cross complaint against Panza Builders Sons, Inc., dated July 19, 2002, alleging that Panza failed to perform in accordance with the agreement of the parties and failed to comply with industry standards with respect to good workmanlike construction and proper building materials. As a result the Trelleviks allege they have sustained monetary damages due to the defective and incomplete work performed by Panza, which will require replacement, repair and additional construction work. In their special defenses only to the First Count of Panza's cross complaint, the Trelleviks had alleged that the contract did not comply with the Home Improvement Act, General Statutes § 20-429. As the First Count of Panza's cross complaint, which sought a foreclosure of mechanic's lien, has been dismissed, due to its defective mechanic's lien, the court will not consider Trellevik's special defenses regarding Panza's violations of the Home Improvement Act. The Trelleviks, as mentioned, have filed no answer or special defenses to the Second Count of the amended cross complaint, wherein Panza alleges solely unjust enrichment by the Trelleviks. The court considers only the Trellevik's claim for damages due to defective and incomplete construction work as alleged in their cross complaint and Panza's claim regarding unjust enrichment.
The court finds that the Trelleviks and Panza entered into a written agreement dated July 26, 2001 for an addition and renovations to the Trelleviks' property at 60 Orchard Road, Woodbridge, Connecticut. The agreement consisted of several documents including (1) AIA Document A101-197; (2) Panza's Bid, dated June 21, 2001; Panza's Proposal, dated July, 26, 2001; Lead Paint Pamphlet Receipt Acknowledgment, dated July 26, 2001; Notice of Cancellation, dated July 26, 2001; and a Supplemental Price Schedule, dated July 26, 2001. AIA Document A101-1997 provides on its face that an additional item titled AIA Document A201-1997 (General Conditions of the Contract for Construction), is "adopted in this document by reference." It also clearly states, "Do not use with other general conditions unless this document is modified."
A copy of AIA201-1997 was not provided to the Trelleviks at the time of the signing of the agreement on July 26, 2001, and was not produced until the time of trial in April 2003. The Trelleviks were provided with a copy of AIA Document A210-1987, an out of date edition of the General Conditions of the Contract for Construction, in late 2001, months after the signing of the agreement.
The initial price for the project, as agreed between the parties on July 26, 2001, was $275,000. This price was to fluctuate greatly between September 2001, and early March 2002. Changes in the project price are evidenced by five different "change order" documents that have been entered into evidence. The first change order, dated September 18, 2001, lowered the price to $262,400. The second change order dated November 27, 2001, lowered the price further, to $211,553. The third change order, dated February 6, 2002, raised the project price to $217,550. The fourth change order dated March 5, 2002, lowered the price to $205,198. Thereafter, on the same date, March 5, 2002, a fifth change order listed the agreed-upon price as $222,293. Change orders 1 and 2 were signed by the architect Alpert, Edward Panza and Per Treilevik. Change orders, 3, 4 and 5 were signed by Alpert and Edward Panza. Neither Per Trellevik or Sheri Trellevik signed these last three change orders despite the fact that the Panza Proposal, which is a part of the parties' agreement, requires that, "All changes in this agreement shall be made by a separate document and executed with the same formalities." Article 7.3 of AIA Document A101-1997 designates Sheri Trellevik as the "Owner's representative" and Ed Panza as the "Contractor's representative." Therefore, the architect Alpert was not authorized to bind the Trelleviks, as their agent or representative to change orders 3, 4 and 5. Article 7 of AIA Document A201-1987 governs changes in work and authorizes the use of a "change order." Article 7.2.1 states "A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating their agreement upon all of the following: (1) a change in the work; (2) the amount of the adjustment in the Contract sum, if any; and (3) the extent of the adjustment in the Contract Time, if any." The court finds that the last document signed by all parties evidencing an agreed-upon contract price is the second change order, dated November 27, 2001, wherein the project price is stated as $211,553. The court will utilize this price of $211,553 as the agreed-upon contract price when analyzing the Trelleviks' claim for damages. The court additionally finds that the Trelleviks have made payments to Panza totaling $138,076.
During the course of the trial the court heard testimony from the parties hereto, as well as, expert witnesses in the home inspection and construction trades regarding the competing claims as to defective and uncompleted work by Panza Builders and Sons, Inc. As is typical in this type of dispute, Panza's witnesses testified as to minor areas of defects and non-completion that could be rectified for a sum of $4,000 to $5,000, and witnesses for the Trelleviks testified that defects and non-completed items were major and would cost as much as $86,000 to rectify. Each expert issued a written report for the court's review and the court has viewed 87 photos of the construction project. The court in weighing the testimony, the photos and the documentary evidence finds that although Panza has substantially performed under the agreement of the parties, there are items of defective and uncompleted work. The court finds that Panza's claim that $4,000 to $5,000 work remains is far too modest. The court finds that the credibility of John Panza and Edward Panza was lessened by their somewhat casual attitude when addressing what the photos clearly depict as examples of defective and poor quality workmanship, as well as uncompleted items. However, the Trelleviks' claim for damages in the amount of $86,000 is excessive and the credibility of their claim and their experts are diminished due to this. The court also notes that the frequent changes requested by the Trelleviks have contributed to the confusion, delay and tension surrounding this project. The court has no doubt that all parties, including Alpert, the architect, contributed to the unsatisfactory final product.
The major areas of defective and uncompleted work involve additional work and repair work in carpentry; interior and exterior trim work; re-painting; drywall repair and replacement; sandblasting and sealing of the new and existing blue stone floor; and the resetting of the newly constructed interior staircase. As the court has trouble accepting the values of either side for these items, due to the wide divergence of opinions and a certain lack of credibility of each of the experts, the court is put in the position of weighing the competing values and making what the court feels are reasonable allocations for each category of defective and uncompleted work. In doing so, the court relies upon certain information elicited from the expert witnesses that it did find credible and which is verified by the photographic exhibits. The physical evidence is clear as to the existence of defects and uncompleted work by Panza. However, the court cannot swallow the expert opinions hook, line and sinker as to the costs of remedying these items as it was obvious that experts for each side have minimized or exaggerated their values to benefit the parties on whose behalf they testified. The credibility of all experts was subject to the court's review as the trier of fact, and the court has taken these credibility problems into account.
In finding that the Trelleviks have sustained their burden of proof as to the existence of defective and unfinished work by Panza Builders Sons, Inc. the court allocates the sum of $6,000 for painting and re-painting; $8,000 for carpentry; $2,500 for drywall repairs; $2,000 for interior and exterior trim work; $680 to reset the staircase; and $750 to sandblast and seal the bluestone flooring. These sums total $19,930. The court accepts the testimony of the Trelleviks' expert, Michael Leibowitz of GCS Construction, LLC, that in addition to the sum of $19,930 an additional 40% must be added as profit and overhead for the craftsmen who will complete these repairs. This 40% will add an additional sum of $7,992 to the total. The court therefore finds that the Trelleviks have proven damages against Panza in the total amount of $28,922 for defective and uncompleted construction work required under the written agreement of the parties.
Having determined that the Trelleviks by virtue of their cross complaint have proven their claim for damages in the amount of $28,922, the court must analyze the effect of this decision as it regards any unjust enrichment by the Trelleviks, as complained of in the Second Count of the amended cross complaint filed by Panza.
"It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach." (Citations omitted; internal quotation marks omitted.) Maloney v. PCRE, LLC, 68 Conn. App. 727, 742, 793 A.2d 1118 (2002), quoting Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991).
The court has found that while defective work and uncompleted items remain, Panza has substantially performed the agreement between it and the Trelleviks. Therefore the Trelleviks cannot be excused from paying any balance due on the contract, as would be the case if there was substantial non-performance of the agreement by Panza. "The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine." (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn. App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992)." "[W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." Pisani Construction, Inc. v. Krueger, 68 Conn. App. 361, 791 A.2d 634 (2002), quoting American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). "The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract." Miller v. Bourgoin, supra, 28 Conn. App. 496. "[F]actors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected [and] the likelihood that the performing party will cure his failure in light of the circumstances." Id.
The Trelleviks should not be excused from paying the balance due on the contract price of $211,553 after deducting the sum of $28,992 awarded to them by the court and their previous payments to Panza totaling $138,076. To do so would not be just. The court also notes that the Trelleviks had filed special defenses to the now dismissed First Count of Panza's cross complaint alleging non-compliance with the Home Improvement Act, which, if proven, could excuse payment by the Trelleviks to Panza on the contract. The merits of Trellevik's special defenses regarding the Home Improvement Act have not been addressed in this decision and would need to be adjudicated in a separate action in the future.
The court also finds that to order Panza to pay the sum of $28,992 to the Trelleviks, the court would place the injured party in a better position than had the contract been fully performed by Panza. In effect, the Trelleviks in exchange for payments of $138,076 and $28,992 totaling $167,068, would be receiving the value of a contract priced at $211,553.
It is axiomatic that the sum of damages awarded as compensation in a breach of contract action "should place the injured party in the same position as he would have been in had the contract been performed." Rametta v. Stella, 214 Conn. 484, 492, 572 A.2d 978 (1990). The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. Vines v. Orchard Hills, Inc., 181 Conn. 501, 507, 435 A.2d 1022 (1980). Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach. 3 Restatement (Second), supra, 347, comment (e). The concept of "actual loss" accounts for the possibility that the "breach itself" may result in a saving of some cost that the injured party would have incurred if he had had to perform. Id., comment (d). In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer; 5 A. Corbin, supra, 1038; that is, subtracted from the loss . . . caused by the breach in calculating [the injured party's] damages. 3 Restatement (Second), supra; see 11 S. Williston, Contracts (3d Ed. Jaeger) 1338, 1339. It is on this ground that . . . when an owner receives a defective or incomplete building, any part of the price that is as yet unpaid is deducted from the cost of completion that is awarded to him . . . 5 A. Corbin, supra; see Sabo v. Strolis, 148 Conn. 504, 506, 172 A.2d 609 (1961) (limiting owner's damages for builder's breach by default in performance to cost of completion less outstanding balance of contract price). Otherwise, the owner would be placed in a better position than full performance would have put him, thereby doubly compensating him for the injury occasioned by the breach. See generally 5 A. Corbin, supra, 1036.
Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991) (internal quotation marks omitted).
The drafters of the Restatement (Second) of Contracts aptly illustrate the operation of the actual loss concept in the context of construction contracts as follows: "A contracts to build a house for B for $100,000, but repudiates the contract after doing part of the work and having been paid $40,000. Other builders will charge B $80,000 to finish the house. B's damages include the $80,000 cost to complete the work less the $60,000 cost avoided or $20,000, together with damages for any loss caused by the delay . . ." 3 Restatement (Second), Contracts 348, comment (c), illustration 2; see id., 347, comment (e), illustration 12.
Argentinis v. Gould, supra, 219 Conn. 151, 159 n. 5.
In Edens v. Hole Construction Co., 188 Conn. 489, 450 A.2d 1161 (1982), the owner filed a complaint alleging that the builder had breached the disputed construction contract by failing to render substantial performance, and seeking damages for the cost of repairing certain construction defects. The builder counterclaimed for foreclosure of a mechanic's lien securing all or part of the $25,000 unpaid balance of the $103,000 contract price. Finding that the builder had not substantially performed the contract, the trial court rendered judgment for the owner on the complaint and the counterclaim and awarded the owner $17,152.65 in damages for the cost of repairs. The builder appealed, alleging error in the trial court's failure to render judgment in its favor on the counterclaim and to award the builder damages in the amount of the difference between the unpaid balance of the contract price and the owner's cost of repairs. It is unclear from the opinion in Edens whether the builder claimed that, in any event, the owner was not entitled to collect damages on the complaint because the unpaid balance of the contract price exceeded the cost of repairing the construction defects. The Edens court stated: "We understand [the builder's] claim of error to refer only to the trial court's refusal to find that it was entitled to the $25,000 balance allegedly due on the contract and in the court's failure to deduct the damage award from this balance." Id., 493. If the builder had claimed that the owner was not entitled to collect damages on the complaint, he should have prevailed under the principles applied in our opinion today.
(Emphasis added) Argentinis v. Gould, supra, 219 Conn. 151, 159 n. 3.
Having reviewed the principles set forth in Argentinis v. Gould, the court enters judgment in the amount of $28,992 in behalf of Per E. Trellevik and Sheri Trellevik as against Panza Builders Sons, Inc. on the cross complaint filed by the Trelleviks. Further, the court orders that this sum of $28,992, as well as previous payments by the Trelleviks to Panza in the amount of $138,076, be credited to the Trelleviks against the contract price of $211,553.
Regarding the Second Count of Panza's amended cross complaint alleging unjust enrichment, the court finds for Panza, as against Trellevik, and awards Panza the sum of $44,485, representing the contract price of $211,553, minus the Trellevik credits totaling $167,068.
In summary, the court hereby dismisses the complaint of Alpert against the defendant Trellevik, and the First Count of the cross complaint of the defendant Panza. The court orders that the Alpert mechanic's lien and the Panza mechanic's lien are hereby discharged. As to the counterclaim of the defendant Trellevik against the plaintiff Alpert, the court finds for the plaintiff Alpert. As to the cross complaint by the defendant Trelleviks against the defendant Panza, the court finds for the defendant Trellevik in the amount of $28,992 for defective and incomplete work, and $138,076 for payments previously made to Panza. As to the Second Count of Panza's amended cross complaint against Trellevik, alleging unjust enrichment, the court finds for Panza as against Trellevik, in the amount $44,485. Judgments shall enter in accordance with this decision for the reasons set forth herein.
THE COURT
By ARNOLD JUDGE.