Opinion
No. CV 08 5005323
February 19, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#116)
The defendants, Daniel Walz and Stacy Miller (hereinafter "defendants"), have filed a motion for summary judgment against the plaintiff, James Stanton (hereinafter "plaintiff"). The defendants claim that the plaintiff failed to timely record his mechanic's lien in accordance with the timetable set out in C.G.S. § 49-34. The plaintiff contends to the contrary.
Background
The plaintiff commenced this action on or about December 20, 2007, by way of a two-count complaint sounding in a foreclosure of a mechanic's lien (count one) and unjust enrichment (count two). The defendants filed their answer, special defenses and counterclaims on March 18, 2009. On or about June 1, 2009, the plaintiff filed a certificate of closed pleadings and claimed this matter to the court trial list.
In his complaint, the plaintiff alleges that he performed work on the defendants' behalf in the construction of their home now located at 8 School House Road on Mason's Island in Mystic, Connecticut. The plaintiff alleges that he was hired by the defendants to "oversee the construction of their home." See Complaint ¶ 1. The complaint goes on to allege that the defendants have "refused and neglected to pay for the reasonable value of the plaintiff's services," which, according to paragraph four of the complaint, is $62,132.00. Id., ¶ 4. As a result of not being paid what the plaintiff feels is the reasonable value of his alleged services for the defendants, the plaintiff issued a Notice of Intent to Claim Mechanic's Lien on December 27, 2006.
The plaintiff's complaint, and the notice and certificate of his mechanic's lien, all state that the plaintiff performed work on the defendants' property through October 4, 2006. In defense of this action, the defendants took the deposition of the plaintiff on October 30, 2008. At the deposition, the plaintiff testified under oath that his bill for services addresses the work that he performed on the defendants' property. The last date of work listed on the bill is September 24, 2006. (See Exhibit 2.)
The plaintiff further testified at his deposition that the work was performed in the month of September. (See Deposition, p. 70.) The defendants, in response to the motion for summary judgment, filed an objection to the motion stating that the plaintiff performed work on the subject property up to and including October 4, 2006. The plaintiff further claimed that the mechanic's lien was properly filed within the statutory period. The plaintiff also filed an affidavit dated January 13, 2010, verifying the above allegations resulting in a claim of a material issue of fact which makes the granting of the motion for summary judgment inappropriate.
Applicable Law
Practice Book § 17-49 "provides that 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"[Section 17-46] sets forth three requirements for consideration of affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge;' (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1996).
Analysis
C.G.S. § 49-34 states, in pertinent part, that:
A mechanic's lien is not valid unless the person performing the services or furnishing the materials (1) within 90 days after he has ceased to do so lodges with the town clerk in which the building, lot or plot of land is situated a certificate in writing . . . (Emphasis added.)
The defendants noticed the deposition of the plaintiff and required him to bring with him all documents supporting his claim for the mechanic's lien. He brought a bill for services rendered for $62,132.00. The plaintiff, at his deposition, testified in response to defense counsel's question that work was performed in September 2006. No cross examination resulted in any other date for completion based upon the affidavits submitted by the defendants and deposition testimony attached to the defendant's motion for summary judgment. The defendant, however, in response to the motion, filed an objection with an affidavit, averring that the last day of work on the subject property was October 4, 2010.
The defendants contend that evidence presented justify a September 24, 2006 date of last work or materials supplied for the property in question. The plaintiff did not submit any documents or testimony at the deposition showing that work was performed in the month of October 2006. If the last day of work was September 24, 2006, ninety days from that date is December 23, 2006, the mechanic's lien was therefore recorded beyond the 90-day period.
The court is left with the affidavit of the nonmovant that work was performed through October 4, 2006, with no documents appended to his affidavit. The affiant is the plaintiff who was hired to perform the work and the very person who was deposed under oath. The Exhibit 2 does have entries without specific dates, but all are listed as performed in September 2006. The plaintiff contends in his objection and oral argument that the mere assertion that work was performed through October 4, 2006, in and of itself is tantamount to a material issue of fact that cannot be resolved by a motion for summary judgment. The plaintiff's affidavit states under oath that "the last day worked at the subject property was October 4, 2006, and that in fact was the last day that I worked and did services and work to improve the subject property." (Plaintiff's Affidavit, para. 5.) This statement appears contrary to the statements made by plaintiff at his deposition.
The trier of fact is the sole arbiter of the credibility of witnesses. Green v. Commissioner of Correction, 119 Conn.App. 348 (2010). A close review of the deposition transcript reveals that the plaintiff was asked, "Are you sure you did it in September," referring to the work as "cut up and remove wood beams." The plaintiff responded in the affirmative. In a prior question as to why he did not have a date on his bill for the work, he responded, "I knew — I knew that I did the work, but I don't know if I had my planner or not. I don't know if I had the exact date." (See Plaintiff's Deposition, p. 70.) The defendant did not inquire further as to the exact date that work was completed.
If the plaintiff's testimony at trial is proved credible by the trier of fact that work was performed after September 24, 2006, the 90-day filing period may have been met by the defendant. The affidavit of the plaintiff, stating the completion date of October 4, 2006, creates an issue of fact to be determined at trial.
ORDER
The court finds a material issue of fact and, therefore, the defendant's motion for summary judgment (#116) is hereby denied.