Opinion
HHDCV156059133S
02-10-2016
T& K Asphalt Services, Inc. v. Bloomfield 600 Associates, Limited Partnership et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
A. Susan Peck, J.
On August 4, 2015, the plaintiff, T& K Asphalt Services, Inc., filed an eight-count revised complaint (the complaint) against the defendants, Bloomfield 600 Associates, Limited Partnership (Bloomfield 600 Associates) and The Kamson Corporation (Kamson). The complaint alleges, in pertinent part, that Kamson is the general partner of Bloomfield 600 Associates. Pending before the court is the defendants' motion to dismiss counts seven and eight against Kamson and Bloomfield 600 Associates, respectively.
Count seven contains the following allegations. On or about June 9, 2014, the plaintiff and the defendants entered into an agreement (the agreement), whereby the plaintiff agreed to provide all the material and labor necessary to remove and replace the asphalt surfaces at an apartment owned by Bloomfield 600 Associates at 600 Cottage Grove Road, Bloomfield. The agreement was entered into by Kamson, in its own right as general partner and also on behalf of Bloomfield 600 Associates. Kamson agreed to pay the plaintiff for all material and labor supplied by the plaintiff, including all change orders. The plaintiff has supplied all the materials and performed all the labor required under the agreement. The plaintiff invoiced Kamson for the labor and materials supplied, but Kamson has only made partial payments. The plaintiff further alleges that, pursuant to General Statues § 42-158j, Kamson was required to pay the plaintiff any amounts due under the agreement no later than thirty days from the date of any written request for payment. The plaintiff has made several written requests for payment; however, Kamson has failed to pay the plaintiff in accordance with § 42-158j(a). On December 16, 2014, the plaintiff notified Kamson that, pursuant to § 42-158j(c)(1), it was required to deposit the full amount of the plaintiff's claim, plus interest, in an interest-bearing escrow account. Kamson has placed some, but not all, of the amount due in an escrow account. Count eight alleges the same facts as count seven but is alleged against Bloomfield 600 Associates.
I
MOTION TO DISMISS
On September 10, 2015, the defendants moved to dismiss counts seven and eight on the ground that the plaintiff failed to comply with the notice provisions required in § 42-158j(c)(1) and (e), and therefore, the court lacks subject matter jurisdiction. Specifically, the defendants argue that the plaintiff sent a letter to Attorney Bruce Tempkin, counsel for the defendants, purporting to place the owner of 600 Cottage Grove Road on notice of the claim under § 42-158j, but did not send it directly to the actual owner of the property, Bloomfield 600 Associates, as required by § 42-158j(c)(1) and (e). In support of its motion to dismiss, the defendants attached the letter to Attorney Temkin and a tax assessor's online record showing Bloomfield 600 Associates to be the owner of 600 Cottage Grove Road. On October 6, 2015, the plaintiff filed an opposition to the defendants' motion to dismiss, arguing that the plaintiff's claims in counts seven and eight only implicate § 42-158j(a) and (c), and subsection (c) only requires notice to be given to the owner and does not provide that notice cannot be given to the owner through his agent or attorney. This matter was heard at short calendar on November 2, 2015.
The plaintiff also argued that if notice was sent directly to Bloomfield 600 Associates, the plaintiff would be violating Rule 4.2 of the Rules of Professional Conduct, which prohibits a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by counsel, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
" In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
The defendants argue that the court lacks subject matter jurisdiction because the plaintiff failed to abide by the statutorily required notice provisions of § 42-158j(c)(1), which requires the claim to be set forth against the owner, and § 42-158j(e), which requires that demand for payment be served on the owner. The plaintiff counters that the lawsuit was not brought pursuant to § 42-158j(e), rather it was brought pursuant to § 42-158j(a) and (c) only. The plaintiff contends that § 42-158j(e) applies to subcontractors who have contracted with the general contractor or another subcontractor, but not the owner. In the present case, the plaintiff has alleged a direct contractual relationship with the defendants. Further, under subsection (c) there is no express requirement that notice be sent directly to the owner, as opposed to an agent or an attorney of the owner.
II
GENERAL STATUTES § 42-158j
" The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider 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 . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and 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 . . ." State v. Rodriguez-Roman, 297 Conn. 66, 74-75, 3 A.3d 783 (2010). " We also note that the rule of statutory construction that statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in its scope by the mechanics of construction." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995).
General Statutes § 42-158j lays out the required provisions in construction contracts for timely payment of contractors, subcontractors and suppliers as well the remedies for untimely payments. Section 42-158j(a) sets forth the payment requirements of an owner in a direct contractual relationship with a contractor, subcontractor or supplier. Section 42-158j(c)(1) provides: " If payment is not made by an owner in accordance with the requirements of subdivision (1) of subsection (a) of this section or any applicable construction contract, such contractor, subcontractor or supplier shall set forth its claim against the owner through notice by registered or certified mail." Section 42-158j(e) provides in relevant part: " This section shall not be construed to prohibit progress payments prior to final payment of the contract and is applicable to all subcontractors and suppliers for material or labor whether they have contracted directly with the contractor or with some other subcontractor on the work. Each owner that enters into a contract under this section and fails or neglects to make payment to a contractor for labor and materials supplied under a contract, as required pursuant to this section, shall, upon demand of any person who has not been paid by the contractor for such labor and materials supplied in the performance of the work under the contract, promptly pay the person for such labor and materials. Demand for payment shall be served on the owner and a copy of each demand shall be sent to the contractor by certified mail, return receipt requested to any address at which the owner and contractor conduct business."
General Statutes § 42-158j(a) states: " Each construction contract shall contain the following provisions: (1) A requirement that the owner pay any amounts due any contractor, subcontractor or supplier in a direct contractual relationship with the owner, whether for labor performed or materials furnished, not later than thirty days after the date any written request for payment has been made by such contractor, subcontractor or supplier; (2) a requirement that the contractor pay any amounts due any subcontractor or supplier, whether for labor performed or material furnished, not later than thirty days after the date the contractor receives payment from the owner which encompasses labor performed or material furnished by such subcontractor or supplier; and (3) a requirement that the contractor shall include in each of it subcontracts a provision requiring each subcontractor and supplier to pay any amounts due any of its subcontractors or suppliers, whether for labor performed or material furnished, not later than thirty days after the date such subcontractor or supplier receives a payment from the contractor which encompasses labor performed or materials furnished by such subcontractor or supplier."
Our case law has held that " a notice provision is a condition precedent when the statute containing the notice provision creates a new cause of action unrecognized by the common law." Fields v. Housing Authority of City of Stamford, 63 Conn.App. 617, 621, 777 A.2d 752, cert. denied 257 Conn. 910, 782 A.2d 133 (2001). " While the legislature's authority to abrogate the common law is undeniable, we will not lightly impute such an intent to the legislature . . . Thus, [w]hen a statute is in derogation of common law . . . it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of statutory construction . . . In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly express." Matthiessen v. Vanech, 266 Conn. 822, 838, 836 A.2d 394 (2003).
General Statutes § 42-158j does not create liability where none existed at common law. Rather, it creates a framework for enforcement of payment obligations between participants in construction projects and is remedial in purpose. " The bill requires each owner who has failed or neglected to pay a contractor for labor or materials as required by a construction contract to pay promptly when demanded to do so by someone who has not been paid by the contractor for such labor or materials . . . If the owner fails to make the payment, the bill gives the person making the demand a direct right of action against the owner . . ." A.M. Rizzo Contractors, Inc. v. J. William Foley, Inc., Superior Court, judicial district of Stamford, Docket No. X05-CV-10-6004577-S (January 13, 2011, Blawie, J.) (51 Conn. L. Rptr. 542, 547, *24). In enacting § 42-158j, the legislature was recognizing a pre-existing public policy concern regarding prompt payment. See LV Construction Co., LLC v. Pro Con, Inc., Superior Court, judicial district of New Haven, Docket No. CV-03-0479368-S (June 23, 2004, Licari, J.) (37 Conn. L. Rptr. 311, 311, *1). When a right or remedy existed at common law and survives the passage of a related statutory provision, it is considered procedural or personal and subject to waiver. See L.G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511-13, 356 A.2d 144 (1975) (concerning statutes of limitations). Because § 42-158j is remedial its provisions should be liberally construed in order to implement its remedial purpose. See State v. Prazeres, 97 Conn.App. 591, 597, 905 A.2d 719 (2006) (stating that remedial statutes are to be liberally construed in favor of those whom the legislature intended to benefit); Bank of Smithtown v. PRA at Norwich, Superior Court, judicial district of New London, Docket No. CV-10-6005315 (July 1, 2011, Devine, J.) (52 Conn. L. Rptr. 184) (§ 42-158j provides remedies for failure to make timely payments on a construction contract).
" [Practice Book § 10-30] specifically and unambiguously provides that any claim of lack of jurisdiction over the person or an insufficiency of service is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or a failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). In the present case, the defendants filed an appearance on May 15, 2015, and again on May 18, 2015. The motion to dismiss was filed on September 10, 2015, which is well over the thirty-day period provided. Therefore, the defendants have waived any right they may have had to challenge the personal jurisdiction of the court.
Further, unlike other statutes where failure to comply with an express notice provision is a precondition to invoking the subject matter jurisdiction of the court, there is no express language identifying the notice provision contained in § 42-158j(c) as subject matter jurisdictional. Compare, General Statutes § 7-465 (municipal employee indemnification statute); General Statutes § 13a-149 (municipal highway defect statute); General Statutes § 30-102 (dram shop act); General Statutes § 49-42 (enforcement of mechanics lien); General Statutes § 47a-15 (summary process action). Nothing contained in the language of § 42-158j(c) indicates that the failure to give the owner notice in a specified manner would deprive the court of subject matter jurisdiction.
The legislature has also made a distinction between the notice required under § 42-158j(c)(1) and § 42-158j(e). " Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of the general provision, then the particular provision must prevail . . ." Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 358, 680 A.2d 1261 (1996). When interpreting a statute, " [the court] presume[s] that the legislature had a purpose for each sentence, clause or phrase in legislative enactment, and that it did not intend to enact meaningless provisions." (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 708 A.2d 1371 (1998). Section 42-158j(c)(1), the provision relied on by the plaintiff, applies to parties who are in a direct contractual relationship with the owner and omits the phrase " served on the owner." By contrast, § 42-158j(e) gives subcontractors, who are not in a direct contractual relationship with the owner, a right to seek payment directly from the owner and contains the phrase " served on the owner." Thus, the court concludes that the legislature intentionally excluded the phrase " served on the owner" from § 42-158j(c)(1).
Finally, the particular facts of this case make it even less likely that the demand for payment was required to be served on the owner. The plaintiff sent demand for payment to Attorney Temkin, the defendants' attorney. It is undisputed that Temkin was representing the defendants in the present matter, as the parties were engaged in negotiations regarding the claim. Furthermore, the communications regarding the negotiations were sent directly to the defendants by their attorney.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendants' motion to dismiss counts seven and eight of the plaintiff's complaint is hereby denied.