Opinion
CV166065326S
02-07-2017
Loureiro Engineering Associates, Inc. v. KBE Building Corporation et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#112)
Jane S. Scholl, J.
Introduction
This is an action on a bond which had been substituted for a mechanic's lien, by the plaintiff, Loureiro Engineering Associates, Inc., against KBE Building Corporation, principal on the bond, and Federal Insurance Company, the surety.
The defendants have moved for summary judgment on the plaintiff's claim against them in the First Count of the Revised Complaint for a number of reasons. In support of their position, the defendants submitted the affidavits of Anthony Maselli, Vice President of the defendant KBE, and various documents. The plaintiff submitted a brief in opposition to the motion for summary judgment as well as certain portions of Maselli's deposition testimony, the affidavit of Brian Cutler, President of the plaintiff, and the affidavit of Dean M. Cordiano, General Counsel for the plaintiff, and certain documents. Oral argument on the motion was heard on December 12, 2016.
Discussion
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [however] a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue . . . Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . . As a general rule, then, [w]hen a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by . . . [the rules of practice], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him . . . Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial . . . [H]owever, one important exception exists . . . to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition . . . On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . ." (Citations omitted; internal quotation marks omitted.) Squeo v. Norwalk Hosp. Association, 316 Conn. 558, 593-95, 113 A.3d 932 (2015).
" Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008).
From the evidence submitted, it is clear that the following facts are undisputed: Columbia/Wegman Farmington, LLC owns certain property in Farmington. It retained Balfour Beatty Construction, LLC (BBC) as its contractor to build an assisted living facility on the property. A joint venture between Balfour Beatty and KBE Building Corporation was BBC's agent on the project. On or about July 9, 2014 BBC subcontracted with Arena Construction Services, LLC to perform certain concrete work on the project. On July 24, 2014, BBC subcontracted with Loureiro to provide certain site layout work. That work was completed in September 2015. On September 4, 2014 Arena hired Loureiro to provide survey work with respect to its concrete subcontract. Loureiro billed Arena $11, 204 for this work which was completed on October 29, 2014. On February 20, 2015 Loureiro executed a lien waiver for work it had performed on the project from September through December 2014. On November 19, 2015 Loureiro filed a mechanic's lien on the property for $11, 204. On December 21, 2015 Loureiro executed a subcontractor partial release and partial waiver of claims regarding the property except Loureiro did not waive or release its mechanic's lien rights, if any, with respect to amounts claimed due for services performed for Arena.
The defendants claim that summary judgment is appropriate because the plaintiff waived its lien when it executed the February 20, 2015 lien waiver. The plaintiff argues that the December 21, 2015 waiver modified the prior February lien waiver by excluding from it the claim regarding work performed for Arena. " 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 . . . 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." (Citations omitted.) Pero Building Co. v. Smith, 6 Conn.App. 180, 184, 504 A.2d 524 (1986). " The interpretation of a contract involves a search for the intent of the parties . . . Where this intent is expressed in language that is clear and unambiguous, the contract is to be given effect according to its terms." Bialowans v. Minor, 209 Conn. 212, 217, 550 A.2d 637 (1988). Here the February waiver states that, as to work covering the months of September-December 2014, Loureiro " waives and releases any claim, mechanic's lien and claim of lien which it may have upon the land and improvements described above in the Project Description . . ." The Project Description is " Farmington Assisted Living Facility-Farmington, Connecticut." The work that Loureiro performed for Arena was completed in October 2014, thus it is clearly covered by the waiver.
The plaintiff argues that the later lien waiver executed in December 2015 modified the February waiver such that it could still pursue a mechanic's lien as to the amount due for the work for Arena. This argument is unavailing. The plaintiff cites Capp Industries, Inc. v. Schoenberg, 104 Conn.App. 101, 110, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d 696 (2007). There the court found that ten lien waivers executed in that case were ambiguous and noted that the trial court relied on parol evidence, which was entered without objection, in determining the effect of the waivers. Here we have but two waivers. Neither waiver is ambiguous and the December waiver makes no mention of the February waiver. Although the December waiver does mention that it does not waive or release the mechanic's lien rights of the plaintiff as to the amounts claimed for services performed for Arena, such reservation is limited by the term " if any." This language indicates a dispute on the part of the parties that such mechanic's lien rights existed. " Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties . . . In contrast, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Citation omitted; internal quotation marks omitted.) Id., 111. The evidence presented establishes that in February 2015 the plaintiff waived its right to claim a mechanic's lien regarding the amounts due for the work performed for Arena. Evidence that the plaintiff intended to modify that lien waiver when it executed the December 2015 waiver, as presented in the affidavits of its President and General Counsel, when there is no specific language in the December 2015 waiver to that effect, is not admissible and will not be considered by the court in determining the motion for summary judgment. Practice Book § 17-46 requires that affidavits submitted in support or opposition to a motion for summary judgment must set forth such facts as would be admissible in evidence. " The parol evidence rule is premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme . . ." (Citation omitted; internal quotation marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 609, 849 A.2d 804 (2004). " Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant." Schilberg Integrated Metals Corporation v. Continental Casualty Company, 263 Conn. 245, 277, 819 A.2d 773 (2003).
The defendants also argue that summary judgment should be granted because the mechanic's lien was filed more than ninety days after the work was completed. General Statutes § 49-34 states: " 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) 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." It is undisputed that the work the plaintiff performed on the Arena contract was completed in October 2014, yet the mechanic's lien was not filed until November 19, 2015, well past the ninety days required by the statute. The plaintiff argues that the lien was timely because it was filed after the work was completed on the second contract with BBC. It cites Parsons v Keeney, 98 Conn. 745, 120 A. 505 (1923), where the court held that: " The Legislature has not provided for a separate certificate for materials and services rendered by one party upon a lienable unit under each of several separate contracts, nor for separate certificates for lienable operations on each of several buildings. It has only provided that there must be alienable claim for materials and services rendered. Where there is a lienable claim arising from distinct contracts as to the same lienable unit of land and buildings, and where these contracts are carried out in a continuous and overlapping employment, the fair and reasonable intent of the statute is to permit the builder to file a certificate of lien for the entire claim arising under all the contracts, without reference to when the work under any particular contract was begun or ended. Under such circumstances the 60 days allowed for filing the certificate would begin when the last operation was performed under the continuous overlapping employment. This course is obviously the least burdensome upon the builder and also upon the landowner, as it lessens the number of certificates to be recorded, and, since during the whole continuous period operations are being conducted on the land by the builders, actual notice of the possibility of liens is given to anyone interested in that matter." The continuation of the work by the plaintiffs in Parsons on the defendant's property was pursuant to separate contracts entered into at the request of the defendant. Parsons is clearly distinguishable from the situation here because the contracts at issue there were between the same parties, not different parties as here, and all the contracts here did not include the owner of the property, as in Parsons .
Since the court has determined that the lien is invalid because it was untimely, and, in any event, the plaintiff waived its lien rights, the court need not address the defendants' third basis for the granting of summary judgment, that is, that the lien is invalid because of its misrepresented contents.
Conclusion
The motion for summary judgment is granted.