Professional Electrical Contractors of Connecticut, Inc. v. Stamford Hospital ( 2020 )

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PROFESSIONAL ELECTRICAL CONTRACTORS OF
CONNECTICUT, INC. v. THE STAMFORD
HOSPITAL ET AL.
(AC 41931)
Bright, Moll and Bear, Js.
Syllabus
The plaintiff, a second tier subcontractor, sought to recover damages from
the defendants H Co., a hospital, S Co., a general contractor, and E Co.,
a subcontractor, for, inter alia, quantum meruit or unjust enrichment,
and to collect on a bond issued by the defendant F Co. posted pursuant
to statute (§ 49-37), in connection with a dispute arising from a project
relating to the expansion and renovation of H Co. Following the trial
court’s granting of motions for summary judgment filed by F Co. and
S Co., the plaintiff appealed to this court. Held:
1. The trial court erred in granting S Co.’s motion for summary judgment
on the count of the complaint in which the plaintiff alleged that H Co.,
S Co. and E Co. were liable in quantum meruit or unjust enrichment;
the plaintiff alleged that it performed services at the request of H Co.,
S Co. and E Co., and that H Co., S Co. and E Co. accepted and benefited
from the plaintiff’s work, and S Co. presented no evidence establishing
that it paid E Co. or someone else for the plaintiff’s specific services,
and, thus, there existed a genuine issue of material fact with respect to
the plaintiff’s claim for quantum meruit or unjust enrichment.
2. The trial court erred in granting the motion for summary judgment filed
by S Co. and F Co. on the count of the complaint in which the plaintiff
sought to collect on the surety bond issued by F Co.: under Connecticut’s
mechanic’s lien statutes (§§ 49-33 and 49-36), recovery was not barred
to the second tier subcontractor plaintiff solely because the first tier
subcontractor had been paid in full by S Co.; moreover, S Co. and F
Co. could not prevail on their alternative ground for affirmance that the
lienable fund had been exhausted by the costs of the project and that
the plaintiff did not have a contract with H Co., S Co. or F Co.; there
was a lienable fund still available in the amount still owed by H Co. to
S Co. at the time the plaintiff gave statutory notice (§§ 49-34 and 49-35)
of its lien to H Co., regardless of whether H Co. continued to make
payments to the nondefaulted S Co., a construction of the applicable
statutes that was supported by the legislative history.
Argued November 18, 2019—officially released March 17, 2020
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford, where the
plaintiff withdrew the action as to the named defendant;
thereafter, the court, Hon. Edward R. Karazin, Jr.,
judge trial referee, granted the motions for summary
judgment filed by the defendant Skanska USA Building,
Inc., et al., and rendered judgment thereon, from which
the plaintiff appealed to this court. Reversed in part;
further proceedings.
Kenneth A. Votre, for the appellant (plaintiff).
Michael J. Donnelly, with whom was Kevin W. Munn,
for the appellee (defendant Sanska USA Building, Inc.).
Charles I. Miller filed a brief for the appellee (defen-
dant Fidelity and Deposit Company of Maryland).
Opinion
BRIGHT, J. The plaintiff, Professional Electrical Con-
tractors of Connecticut, Inc., appeals from the summary
judgment rendered by the trial court in favor of the
defendants Fidelity and Deposit Company of Maryland
(Fidelity)1 and Skanska USA Building, Inc. (Skanska).2
On appeal, the plaintiff claims that the court erred in
rendering summary judgment on counts two and three
of its complaint because there were genuine issues of
material facts and neither defendant was entitled to
judgment as a matter of law. Specifically, the plaintiff
claims that (1) Skanska failed to prove that there existed
no issues of material fact on the plaintiff’s equitable
claim of quantum meruit or unjust enrichment, and (2)
neither defendant established that it was entitled to
judgment as a matter of law on the plaintiff’s bond
claim because the claim is viable pursuant to General
Statutes §§ 49-33 and 49-36. We agree with the plaintiff
on both claims. Accordingly, we reverse in part and
affirm in part the judgment of the trial court.3
The following facts, which were uncontested for sum-
mary judgment purposes, and procedural history are
relevant to our consideration of the issues on appeal.
The plaintiff commenced this action by service of pro-
cess on January 4, 2017. In its complaint, the plaintiff
alleged, in count one, that Semac Electrical Company,
Inc. (Semac), Skanska, and The Stamford Hospital (hos-
pital) were in breach of contract on the basis of the
following alleged facts: the hospital had entered into a
contract with Skanska to provide construction services
to the hospital (project); Skanska entered into a subcon-
tract agreement with Semac for electrical work on the
project; Semac entered into a second tier subcontract
agreement with the plaintiff to perform electrical work
on the project; on October 3, 2015, the plaintiff began
to furnish materials and services for the project; the
plaintiff furnished materials and services in accordance
with the terms of its contract; the plaintiff has
demanded payments in the amount of $38,509.07; and
Semac, Skanska, and the hospital all have refused to
pay the plaintiff for its materials and services in breach
of contract.
In count two of its complaint, the plaintiff alleged
that Semac, Skanska, and the hospital were liable under
the theories of quantum meruit or unjust enrichment.
In addition to the facts alleged in count one, which the
plaintiff incorporated into count two, the plaintiff also
alleged that it performed services and incurred costs
at the request of Semac, Skanska, and the hospital; its
services were worth at least $38,509.07; Semac, Skan-
ska, and the hospital accepted and benefited from the
plaintiff’s work; the plaintiff requested payment for the
reasonable value of the services it rendered; Semac,
Skanska, and the hospital have refused to pay the plain-
tiff; and Semac, Skanska, and the hospital have been
unjustly enriched.
In the third count of its complaint, the plaintiff sought
to collect on the bond pursuant to General Statutes § 49-
37. Specifically, it alleged in count three that Skanska
submitted a bond in the amount of $38,509.07 in substi-
tution for the mechanic’s lien that had been filed against
the hospital in the original amount of $42,359.97; on
January 27, 2016, Fidelity issued the surety bond in the
amount of $42,359.97; Skanska has failed to pay the
plaintiff, despite repeated demands for the sum of
$38,509.07; and Fidelity has refused to pay the plaintiff
on the bond.
Fidelity filed an answer and set forth a special defense
in which it alleged that the lienable fund had been
exhausted by the costs of the project, and that the
plaintiff did not have a contract with the hospital, Skan-
ska, or Fidelity. Skanska also filed an answer in which
it, inter alia, denied having any type of contract with
the plaintiff, and it left the plaintiff to its proof on other
allegations set forth in the complaint. Skanska did not
file a special defense.
On March 29, 2018, Skanska filed a motion for sum-
mary judgment on the plaintiff’s complaint. In its
motion, Skanska argued that it was entitled to judgment
as a matter of law because (1) there was no lienable
fund available because all funds had been exhausted
in completing the project, (2) there existed no contract
between it and the plaintiff, and (3) its payment to
Semac, the party with whom the plaintiff had con-
tracted, barred the plaintiff’s claims for quantum meruit
or unjust enrichment. In support of its motion for sum-
mary judgment, Skanska submitted the affidavit of
Michael J. Smerglio, the executive director of facilities
management for the hospital. Smerglio averred that the
hospital and Skanska had entered into a contract for
the construction and renovation of the hospital, which
required Skanska to act as the construction manager
for the project. He also averred that Skanska would
send the hospital periodic requests for payment on the
basis of the work that had been completed, and that
the hospital would produce the payments after making
any necessary adjustments. Further, he averred that the
hospital and Skanska had entered into a series of change
orders that expanded and refined the work to be done
on the project, which then adjusted the final contract
price to a maximum price of $284,091,867. Smerglio
acknowledged that the plaintiff served the hospital with
a notice of mechanic’s lien on January 13, 2016, and
that, as of that date, the hospital had paid to Skanska
the sum of $216,637,556.56 on the project, and that it
had not paid any other entity for work done on the
project. Smerglio additionally averred that, after Janu-
ary 13, 2016, the hospital paid Skanska an additional
$67,354,375.44 for work on the project, for a total of
$283,991,932, with the remaining $99,935 held as
retainage, pending completion of some punch list items.
Smerglio also declared that Skanska had not been in
default on its contract with the hospital. Appended to
Smerglio’s affidavit were several exhibits, the first of
which provided that the original amount of the contract
between the hospital and Skanska, before the series
change orders, was $267,706,729.
Skanska also submitted the affidavit of Mark Miller,
its senior vice president and the director for the project.
Miller averred in relevant part that in October, 2015,
Semac breached its subcontract with Skanska and aban-
doned the project, requiring Skanska to hire replace-
ment subcontractors to complete the work at an
increased cost, which was borne by Skanska and not
by the hospital. Miller further attested that there never
was a contract between Skanska and the plaintiff, the
hospital and the plaintiff, or Fidelity and the plaintiff
in relation to the project, and that the plaintiff was a
second tier subcontractor on the project.
On April 2, 2018, Fidelity filed a motion for summary
judgment, specifically joining Skanska’s motion and
memorandum as to count three of the plaintiff’s com-
plaint, which is the bond claim.
The plaintiff filed an opposition to the motions for
summary judgment, arguing that there were genuine
issues of material fact that prohibited the granting of
the motions for summary judgment and that there was
no merit to the motions as to the bond claim because
it is uncontested that the lienable fund was not
exhausted at the time the plaintiff filed its mechanic’s
lien. No affidavits or other evidence were attached to
the plaintiff’s memorandum in opposition.
On July 11, 2018, the court rendered summary judg-
ment in favor of the defendants, concluding that there
were no genuine issues of material fact and that the
defendants were entitled to judgment as a matter of
law. As to the plaintiff’s claim for breach of contract,
the court stated that the plaintiff had conceded that it
did not have a contract with Skanska and, therefore,
that count one of the complaint was not viable as to
Skanska. As to the plaintiff’s claim for quantum meruit
or unjust enrichment, set forth in count two of the
complaint, the court, referencing and taking judicial
notice of the related case of Semac Electric Co. v. Skan-
ska USA Building, Inc., Superior Court, judicial district
of Hartford, Complex Litigation Docket, Docket No.
X07-CV-XX-XXXXXXX-S (August 23, 2017), aff’d, 195 Conn.
App. 695, A.3d (2020) (Semac), pointed out that
‘‘[t]he record in Semac [was] silent on whether Skanska
dealt with the plaintiff prior to Semac’s breach, directed
the plaintiff’s performance and knowingly accepted its
services, or represented that Skanska [would] compen-
sate the plaintiff for work done.’’ Nonetheless, the court
concluded that judgment was appropriate on this count
of the plaintiff’s complaint because it concluded that
there was no evidence of an implied contract between
Skanska and the plaintiff.
As to the bond claim, the court concluded that the
defendants’ argument that the lienable fund had been
exhausted was not compelling, but, relying on Brian’s
Floor Covering Supplies, LLC v. Spring Meadow
Elderly Apartments, Superior Court, judicial district of
Fairfield, Docket No. CV-XX-XXXXXXX-S (March 22, 2006),
concluded that Skanska already had paid Semac for the
plaintiff’s work, and, therefore, the plaintiff could not
recover under the bond. The court, thereafter, rendered
judgment in favor of the defendants. This appeal
followed.
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Allstate Ins. Co.
v. Barron, 269 Conn. 394, 405–406, 848 A.2d 1165 (2004).
I
The plaintiff claims that the court erred in rendering
summary judgment on count two of its complaint
because Skanska failed to prove that there exists no
issue of material fact on the equitable claim of quantum
meruit or unjust enrichment. The plaintiff argues that
it sufficiently alleged in its complaint that Skanska knew
of and accepted the plaintiff’s work, and that this allega-
tion, which has not been rebutted sufficiently by the
defendants’ evidence, alone demonstrates the existence
of an issue of material fact as to whether there was an
implied contract between the plaintiff and Skanska,
which would support count two of its complaint sound-
ing in the theories of quantum meruit and unjust enrich-
ment. The plaintiff also argues that the issue of whether
Skanska paid Semac in full for the work done by the
plaintiff has no bearing on its claims for quantum meruit
or unjust enrichment because Semac did not pay the
plaintiff, and Skanska accepted the benefit of the plain-
tiff’s work. Skanska argues that the plaintiff’s claim
sounds only in unjust enrichment, not in quantum
meruit, which the plaintiff disputes vigorously in its
reply brief. On the merits of the plaintiff’s claim, Skan-
ska argues that, because it paid Semac for the work
done by the plaintiff, the plaintiff cannot recover from
Skanska but must seek its recovery from Semac. We
agree with the plaintiff.
‘‘Quantum meruit and unjust enrichment are noncon-
tractual means of recovery in restitution. Quantum
meruit is a theory of recovery permitting restitution in
the context of an otherwise unenforceable contract. In
contrast, recovery under a theory of unjust enrichment
applies in the absence of a quasi-contractual relation-
ship. . . . Because both doctrines are restitutionary,
the same equitable considerations apply to cases under
either theory. The terms of an unenforceable contract
will often be the best evidence for restitution of the
reasonable value of services rendered in quantum
meruit, although sometimes the equities may call for a
more restrictive measure. . . . [Our Supreme Court]
has used quantum meruit and unjust enrichment inter-
changeably, or as equivalent terms for recovery in resti-
tution.’’ (Citations omitted.) Walpole Woodworkers, Inc.
v. Manning, 307 Conn. 582, 587 n.9, 57 A.3d 730 (2012).
‘‘Quantum meruit is a theory of contract recovery
that does not depend upon the existence of a contract,
either express or implied in fact. . . . Rather, quantum
meruit arises out of the need to avoid unjust enrichment
to a party, even in the absence of an actual agreement.
. . . Quantum meruit literally means as much as he has
deserved . . . . Centered on the prevention of injus-
tice, quantum meruit strikes the appropriate balance
by evaluating the equities and guaranteeing that the
party who has rendered services receives a reasonable
sum for those services. Unjust enrichment applies
whenever justice requires compensation to be given for
property or services rendered under a contract, and no
remedy is available by an action on the contract . . . .
Indeed, lack of a remedy under the contract is a precon-
dition for recovery based upon unjust enrichment. Not
unlike quantum meruit, it is a doctrine based on the
postulate that it is contrary to equity and fairness for
a defendant to retain a benefit at the expense of the
plaintiff.’’ (Citations omitted; internal quotation marks
omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766
A.2d 416 (2001).
‘‘[A] right of recovery under the doctrine of unjust
enrichment is essentially equitable, its basis being that
in a given situation it is contrary to equity and good
conscience for one to retain a benefit which has come
to him at the expense of another. . . . With no other
test than what, under a given set of circumstances, is
just or unjust, equitable or inequitable, conscionable or
unconscionable, it becomes necessary in any case
where the benefit of the doctrine is claimed, to examine
the circumstances and the conduct of the parties and
apply this standard. . . .
‘‘Unjust enrichment is a very broad and flexible equi-
table doctrine that has as its basis the principle that it
is contrary to equity and good conscience for a defen-
dant to retain a benefit that has come to him at the
expense of the plaintiff. . . . The doctrine’s three basic
requirements are that (1) the defendant was benefited,
(2) the defendant unjustly failed to pay the plaintiff for
the benefits, and (3) the failure of payment was to the
plaintiff’s detriment. . . . All the facts of each case
must be examined to determine whether the circum-
stances render it just or unjust, equitable or inequitable,
conscionable or unconscionable, to apply the doctrine.’’
(Citations omitted; internal quotation marks omitted.)
Id., 408–409.
In the present case, in count two of its complaint,
the plaintiff alleges that Skanska is liable to it under
the theories of quantum meruit or unjust enrichment.
Specifically, the plaintiff alleges in count two that Skan-
ska entered into a contract with the hospital to provide
construction services on the project; Skanska entered
into a subcontract agreement with Semac to perform
electrical work on the project; Semac entered into a
second tier subcontract agreement with the plaintiff to
perform electrical work on the project; the plaintiff, on
October 3, 2015, began to furnish materials and services
for the project; the plaintiff performed services and
incurred costs at the request of Skanska; Skanska
accepted and benefited from the plaintiff’s work; the
plaintiff demanded payment in the amount of
$38,509.07 for its services from Skanska; and Skanska
refused to pay the plaintiff.
In its motion for summary judgment as to count two
of the plaintiff’s complaint, Skanska argued that,
because it had paid Semac, the party with whom the
plaintiff had a written contract, the plaintiff’s claims
against Skanska were barred. In support of its motion
for summary judgment, Skanska relied on the affidavit
of Miller and the court’s decision in the Semac case.
Miller averred in relevant part that in October, 2015,
Semac breached its subcontract with Skanska and aban-
doned the project, requiring Skanska to hire replace-
ment subcontractors to complete the electrical work
at an increased cost, which was borne by Skanska and
not by the hospital. Miller further attested that the plain-
tiff was a second tier subcontractor on the project, and
that there existed no contract between Skanska and
the plaintiff. In the Semac case, the court held that
Semac had overbilled Skanska, and it rendered judg-
ment in favor of Skanska and against Semac in the
amount of $4,262,390.56. Semac Electrical Co. v. Skan-
ska USA Building, Inc., supra, Superior Court Docket
No. X07-CV-XX-XXXXXXX-S. Skanska argues that because
it is undisputed that it paid Semac and replacement
contractors more than the amount it contractually was
required to pay Semac, as a matter of law, it cannot
have been unjustly enriched by not paying the plaintiff
for any work it performed. We are not persuaded.
The Miller affidavit and the court’s decision in the
Semac case do not speak to the plaintiff’s allegations
in count two that it began working on the project on
October 3, 2015, that it obtained materials and provided
services in the amount of $38,509.07 for the project,
that it completed its work, that Skanska accepted and
benefited from the plaintiff’s work, that the plaintiff
performed services and incurred costs at the request
of Skanska and that Skanska has never paid for the
plaintiff’s work.4 The trial court, in its decision in the
Semac case, calculated damages due to Skanska based
on the court’s analysis of the percentage of work com-
pleted by Semac compared to how much Semac was
paid. Id. The trial court in that case made no finding
that Semac had been paid for the work performed by
the plaintiff. The lack of such a finding is particularly
significant because the court specifically found that
Semac had been compensated for the work performed
by two other subcontractors. Additionally, as the trial
court in the present case stated, it also is unknown
whether Skanska ‘‘dealt with the plaintiff prior to Sem-
ac’s breach, directed the plaintiff’s performance and
knowingly accepted its services, or represented that [it
would] compensate the plaintiff for work done.’’
The fact that Skanska paid replacement electrical
contractors more than it was contractually obligated
to pay Semac, as averred to by Miller, or overpaid
Semac, as found by the trial court in the Semac case,
says nothing about whether Skanska ever paid Semac
or anyone else for the work performed by the plaintiff.
Without evidence to the contrary, it is entirely possible
that the additional costs incurred by Skanska for electri-
cal work were unrelated to the work performed by the
plaintiff. If that is the case, then Skanska was unjustly
enriched because it received the benefit of the plaintiff’s
work without ever paying anyone for it. The court was
not in a position to resolve this issue on summary judg-
ment because Skanska failed to present evidence estab-
lishing that there was no genuine issue of material fact
that it had paid Semac or someone else for the plaintiff’s
specific services.
The cases relied on by Skanska are consistent with
our analysis. In Providence Electric Co. v. Sutton Place,
Inc., 161 Conn. 242, 245–47, 287 A.2d 379 (1971), our
Supreme Court held that the plaintiff subcontractor
who had supplied appliances to the general contractor
to be installed in apartments in the defendant owner’s
building could not prevail on a claim of unjust enrich-
ment against the owner because the plaintiff failed to
prove that the owner had not paid the general contrac-
tor for the appliances. Id. According to the court, ‘‘[i]n
this case, the plaintiff has clearly demonstrated that
[the owner] has derived a benefit: Electrical appliances
were installed in its apartments. If, however, [the
owner] paid [the general contractor] for those appli-
ances, then the enrichment, in the absence of fraud,
has not been unjust.’’ (Emphasis added.) Id., 246. The
question then is whether the owner, or in this case,
Skanska, paid for the precise goods and/or services
supplied by the subcontractor. In Nation Electrical
Contracting, LLC v. St. Dimitrie Romanian Orthodox
Church, 144 Conn. App. 808, 74 A.3d 474 (2013), this
court upheld the trial court’s unjust enrichment award
to the plaintiff subcontractor because there was suffi-
cient evidence that the defendant owner had not paid
the general contractor for the plaintiff’s work even
though the owner had ‘‘paid far in excess of the contract
price to complete the project.’’ Id., 818–19. Conse-
quently, Skanska was entitled to summary judgment
only if it submitted evidence sufficient to establish that
there was no genuine issue of material fact that it paid
for the specific work performed by the plaintiff. It failed
to do so.
It is the movant’s burden at the summary judgment
stage to prove that there exists no disputed issue of
material fact and that it is entitled to judgment as a
matter of law. See, e.g., Allstate Ins. Co. v. Barron,
supra, 269 Conn. 405. The absence of any evidence
to refute the plaintiff’s allegations that it performed
services at the request of Skanska, and that Skanska
accepted and benefited from the plaintiff’s work
because it never paid for that work, creates genuine
issues of material fact with respect to the plaintiff’s
claim for quantum meruit or unjust enrichment.5 Nei-
ther Miller’s affidavit nor the court’s decision in the
Semac case, submitted by Skanska in support of its
motion for summary judgment on count two of the
plaintiff’s complaint, addresses these material allega-
tions. Accordingly, the court erred in granting Skanska’s
motion for summary judgment on count two of the
plaintiff’s complaint.
II
The plaintiff next claims that the court erred as a
matter of law in rendering summary judgment on count
three of its complaint. Specifically, the plaintiff argues
that its bond claim is viable under a proper reading of
our mechanic’s lien statutes, including §§ 49-33, 49-36,
and 49-37.6 The defendants argue that the court properly
granted the motion for summary judgment on the third
count of the plaintiff’s complaint, but for the wrong
reason. Specifically, they argue that they were entitled
to judgment as a matter of law on count three of the
plaintiff’s complaint because the lienable fund was
exhausted in completing the project, and there were
no funds remaining to give to the plaintiff.7 We agree
with the plaintiff that its claim remains viable.
‘‘Those who provide services or materials in connec-
tion with the construction of a building are entitled to
claim a lien on the land that they have improved if they
fall into one of two categories. Lienors are protected
if they have a claim either (1) by virtue of an agreement
with or the consent of the owner of the land, or (2) by
the consent of some person having authority from or
rightfully acting for such owner in procuring labor or
materials. General Statutes § 49-33. Lienors in the sec-
ond category must give timely notice of their intent to
claim a lien in order to perfect their lien, while those
in the first category need not give such notice. General
Statutes § 49-35. Lienors in the second category include
subcontractors and persons who furnish materials or
services by virtue of a contract with the original contrac-
tor or with any subcontractor, that is to say at least
first and second tier subcontractors. General Statutes
§ 49-35. No mechanic’s lien may exceed the price which
the owner has agreed to pay for the building being
erected or improved, and the owner is entitled, further-
more, to credit for payments made in good faith to the
original contractor before receipt of notice of such a
lien or liens. General Statutes §§ 49-33 and 49-36. If
the contract price which the owner agreed to pay the
original contractor is insufficient to cover all the liens,
claimants other than the original contractor are to be
paid first, and, if necessary, on a pro rata basis. General
Statutes § 49-36.’’ (Emphasis added; footnote omitted.)
Seaman v. Climate Control Corp., 181 Conn. 592, 595–
96, 436 A.2d 271 (1980)8; see also ProBuild East, LLC
v. Poffenberger, 136 Conn. App. 184, 191–92, 45 A.3d
654 (2012).
‘‘General Statutes § 49-33 establishes a lien in favor
of subcontractors by virtue of an agreement with or by
consent of the owner of the land upon which the build-
ing is being erected . . . . It is well established that
[i]t is not necessary to their lien status that [a subcon-
tractor] have any direct contractual relationship either
with the owner or with the general contractor . . . .
All that is necessary is that the defendant consented to
have a building erected on its property and that the lien
was for materials or services provided in the erection
of said building.’’ (Citations omitted; internal quotation
marks omitted.) Connecticut Carpenters Benefit Funds
v. Burkhard Hotel Partners II, LLC, 83 Conn. App. 352,
362, 849 A.2d 922 (2004).
We first address the reasoning set forth by the trial
court in rendering summary judgment on the bond
claim. The court held that ‘‘because Skanska already
paid Semac . . . it was not obligated to pay the plaintiff
. . . .’’ But see footnote 4 of this opinion. We disagree
with the premise of this holding. Our Supreme Court
in Seaman v. Climate Control Corp., supra, 181 Conn.
596–97, addressed this precise question and clearly held
that, under our mechanic’s lien statutes, recovery would
not be barred to a second tier subcontractor solely
because ‘‘the first tier subcontractor with whom they
contracted has been paid in full by the general contrac-
tor.’’ The trial court, therefore, erred in rendering sum-
mary judgment on this ground. We next consider the
alternative ground for affirmance raised by the defen-
dants on appeal.
We have examined all of the cases raised by the
parties, as well as conducted our own examination of
our appellate case law, and we have found nothing
factually analogous with the present case. Accordingly,
we must determine, as a matter of first impression,
whether a lienable fund is exhausted when, after proper
notice that a subcontractor has filed a mechanic’s lien
on the property, the property owner continues to pay
the general contractor for work on the project until the
general contractor has been paid the full contract price.
Guided by our General Statutes, relevant legislative his-
tory, and our relevant case law, we conclude that when
the general contractor is not in default, unless there
were payments made in bad faith, the lienable fund is
the amount still owed by the property owner to the
general contractor at the time the property owner
receives notice of the lien pursuant to General Statutes
§ 49-34,9 regardless of whether it continues to make
payments to the nondefaulted general contractor. See
General Statutes § 49-36 (c) (in determining amount of
lienable fund, property owner allowed credit for what-
ever good faith payments it has made to general contrac-
tor before it received notice of lien); see generally Gen-
eral Statutes § 49-35 (regarding subcontractor’s notice
of intent);10 H & S Torrington Associates v. Lutz Engi-
neering Co., 185 Conn. 549, 555, 441 A.2d 171 (1981)
(subcontractor or materialman may give property
owner § 49-35 notice of intent prior to recording
mechanic’s lien certificate or may give notice under
§§ 49-34 and 49-35 with service of lien certificate; two
separate notices not required).11
Although, as noted previously in this opinion, neither
this court nor our Supreme Court has addressed the
precise issue before us, certain decisions by our
Supreme Court interpreting the relevant statutes at
issue in this case inform our analysis. We start with
our Supreme Court’s decision in Seaman, a case quite
similar in many respects to the present case, and one
relied on by all parties on appeal. In Seaman, the plain-
tiff, who was the property owner, contracted with a
general contractor to construct apartment style hous-
ing. Seaman v. Climate Control Corp., supra, 181 Conn.
593. The general contractor then entered into a subcon-
tract agreement for the installation of plumbing equip-
ment on the project, and the subcontractor, thereafter,
entered into two second tier subcontract agreements,
one with a supplier and one with a servicer. Id., 593–94.
The second tier subcontractors, who were the defen-
dants in the case, had no contractual relationship with
the plaintiff or the general contractor, and their work
was not directed or controlled by either of them. Id.,
594. The general contractor had paid the subcontractor
nearly the full amount of its subcontract price when
the subcontractor defaulted and walked off the job. Id.,
594 and n.3. Although having been paid by the general
contractor, the subcontractor had not paid the defen-
dants. Id., 594–95. The defendants notified the property
owner of their intention to file a mechanic’s lien; at
that time, the property owner still owed the general
contractor $89,157, with an additional cost of $8005.91
to complete the work left unfinished by the defaulting
subcontractor. Id., 594. The defendants each filed a
mechanic’s lien, one in the amount of $40,697.66 and
the other in the amount of $7702, the total of which
was ‘‘substantially less than the amount remaining due
. . . to the general contractor . . . .’’ Id., 595. The par-
ties thereafter stipulated that the $7702 amount should
be $6526. Id. Unlike the hospital in the present case,
the property owner in Seaman did not pay the general
contractor the outstanding balance he owed, but,
rather, he retained that money after receiving notice of
the liens. Id., 596.
Our Supreme Court explained in Seaman: ‘‘The sub-
contractors, even though they are second tier rather
than first tier subcontractors, are prima facie within
the ambit of the mechanic’s lien law. It is not necessary
to their lien status that they have any direct contractual
relationship either with the owner or with the general
contractor (denominated the original contractor in the
statutes). They have concededly given timely notice to
the owner, in proper form, of their liens. There is an
identifiable fund which appropriate claims for mechan-
ic’s liens may reach, since the owner has retained an
unpaid balance due under his contract with the general
contractor that exceeds in amount the totality of the
mechanic’s lien claims.’’ Id. Our Supreme Court then
explained that the defendants, which were second tier
subcontractors, were not barred from recovery on their
liens simply because the first tier subcontractor, with
whom they had contracted, had been paid in full by the
general contractor. Id., 596–97.
Our Supreme Court then set forth its analysis of § 49-
33: ‘‘In interpreting this section, the complexity of which
should not be underestimated . . . we are guided by
[well settled] principles of construction. Although the
mechanic’s lien law creates a statutory lien in deroga-
tion of the common law, its remedial purpose to furnish
security for a contractor’s labor and materials requires
a generous construction. . . . Even bearing in mind
the statute’s beneficent purpose, we are, however, con-
strained by the language of the statute as we find it,
and cannot rewrite the statute or adopt the reasoning
of precedents in other jurisdictions with different stat-
utes. . . .
‘‘Two sentences in § 49-33 are central to the argu-
ments of the parties. ‘[A] mechanic’s lien shall [not]
attach to any . . . building . . . in favor of any sub-
contractor to a greater extent in the whole than the
amount which the owner has agreed to pay to any
person through whom [the] subcontractor claims
. . . . [General Statutes § 49-33 (e).] Any such subcon-
tractor shall be subrogated to the rights of the person
through whom such subcontractor claims . . . .’ [Gen-
eral Statutes § 49-33 (f).] The plaintiff urges that the
second sentence subrogates the second tier subcontrac-
tor to the rights of the first tier subcontractor while the
defendants claim to be subrogated to the rights of the
general contractor. These disparate interpretations are
crucial to this appeal, since the first tier subcontractor,
having been fully paid, has no right to which anyone
could be subrogated, while the general contractor, as
yet partially unpaid, remains a suitable candidate for
subrogation. The parties are at odds both about the
significance of the exact wording of § 49-33 and about
its relationship to our existing case law.’’ (Citations
omitted; footnote omitted.) Id., 597–99. The court
explained that a second tier subcontractor is subro-
gated to the rights of the general contractor when the
first tier subcontractor defaults after having been paid,
leaving unpaid the second tier subcontractor. Id., 603–
604. Our Supreme Court explained that it is significant
that under our legislative scheme ‘‘all subcontractors
are preferred to the general contractor if the lienable
fund is inadequate to cover [all] outstanding claims.’’12
Id., 605; see General Statutes § 49-36. When considering
the plaintiff’s argument in Seaman that the court’s con-
struction of § 49-33 would result in the ‘‘unjust enrich-
ment of second tier subcontractors,’’ our Supreme
Court stated the following: ‘‘How the risk of defaulting
first tier subcontractors should be allocated between
the owner and the general contractor is not an issue
presently before us, although we observe that contrac-
tors generally are deemed to make a number of implied
warranties, including the warranty that there are no
outstanding liens. Cf. Uniform Commercial Code §§ 2-
312 and 3-417, General Statutes §§ 42a-2-312 and 42a-
3-417.’’13 Id., 606.
The significant difference between the facts in Sea-
man and the facts in the present case is that the prop-
erty owner in Seaman, after he received notice of the
second tier subcontractors’ liens, retained the balance
due to the nondefaulted general contractor, whereas,
in the present case, the hospital, after it received notice
of the plaintiff’s lien, continued to make payments to
the nondefaulted general contractor, Skanska. The
defendants argue that, pursuant to the language in §§ 49-
33 (e) and (f) and 49-36, this fact makes all the difference
because the lienable fund became exhausted when the
hospital paid the full contract price to Skanska.
In support of this argument, the defendants princi-
pally rely on our Supreme Court’s decision in Rene Dry
Wall Co. v. Strawberry Hill Associates, 182 Conn. 568,
438 A.2d 774 (1980). In that case, the plaintiff subcon-
tractor sought to foreclose a mechanic’s lien held
against the defendant owner whose property was
improved by the plaintiff’s work. Id., 569. The defendant
argued that it was excused from the obligation to pay
the plaintiff because of good faith payments made to
the general contractor before notice of the plaintiff’s
lien and ‘‘because of expenditures reasonably incurred
to complete the construction project after the general
contractor’s default.’’ Id. The court concluded that the
issues in the case were framed by the relevant statutory
provisions regarding mechanic’s liens. In particular, the
court held that ‘‘General Statutes §§ 49-33 and 49-36
. . . define and delimit the fund to which a properly
noticed mechanic’s lien may attach. Both of these sec-
tions start with the proposition that no mechanic’s lien
may attach to any building or land in an amount greater
than the price which the owner has agreed to pay to
the general contractor for the building being erected
or improved. This amount may be diminished to the
extent that it exceeds ‘the reasonable cost . . . of satis-
factory completion of the contract plus any damages
resulting from . . . default for which [the general con-
tractor] might be held liable to the owner.’ General
Statutes § 49-33. The amount may be diminished further
by ‘bona fide payments, as defined in section 49-36,
made by the owner [to the general contractor] before
receiving notice of [the mechanic’s] lien or liens.’ ’’
(Footnotes omitted.) Id., 571–72.14
The defendants argue that, applying the reasoning of
Rene Dry Wall Co., the plaintiff cannot collect on the
bond because the combination of the amounts paid by
the hospital in good faith prior to notice of the plaintiff’s
lien and the amounts paid to Skanska to complete the
construction project equal the amount the hospital
agreed to pay for the project. Thus, they argue, there
is no lienable fund available to the plaintiff. The plaintiff
argues in response that Rene Dry Wall Co. is distinguish-
able and inapplicable to this case because Skanska was
never in default of its contract with the hospital.
According to the plaintiff, pursuant to § 49-33, an owner
is entitled to credits against the lienable fund only for
payments made after notice of a subcontractor’s lien
when it is required to make such payments because of
the general contractor’s default. We agree with the
plaintiff.
Section 49-33 provides in relevant part: ‘‘(e) A
mechanic’s lien shall not attach . . . in favor of any
subcontractor to a greater extent in the whole than the
amount which the owner has agreed to pay to any
person through whom the subcontractor claims subject
to the provisions of section 49-36.
‘‘(f) Any such subcontractor shall be subrogated to
the rights of the person through whom the subcontrac-
tor claims, except that the subcontractor shall have a
mechanic’s lien or right to claim a mechanic’s lien in
the event of any default by that person subject to the
provisions of sections 49-34, 49-35 and 49-36, provided
the total of such lien or liens shall not attach . . . to
a greater amount in the whole than the amount by which
the contract price between the owner and the person
through whom the subcontractor claims exceeds the
reasonable cost, either estimated or actual, as the case
may be, of satisfactory completion of the contract plus
any damages resulting from such default for which that
person might be held liable to the owner and all bona
fide payments, as defined in section 49-36, made by the
owner before receiving notice of such lien or liens.’’
Section 49-36 provides in relevant part: ‘‘(a) No
mechanic’s lien may attach . . . to a greater amount
in the whole than the price which the owner agreed
to pay for the building and its appurtenances or the
development of any such lot, or the development of
any such plot of land. . . .
‘‘(c) In determining the amount to which any lien or
liens may attach . . . the owner of the [property] . . .
shall be allowed whatever payments he has made, in
good faith, to the original contractor or contractors,
before receiving notice of the lien or liens. No payments
made in advance of the time stipulated in the original
contract may be considered as made in good faith,
unless notice of intention to make the payment has
been given in writing to each person known to have
furnished materials or rendered services at least five
days before the payment is made.’’ (Emphasis added.)
The plaintiff argues that, under a proper reading of
these statutes, when the general contractor is not in
default, the lienable fund must be determined at the
time the lien is filed and notice given to the property
owner. The defendants argue that the plaintiff’s inter-
pretation of the statutes ‘‘would create a perverse incen-
tive by encouraging property owners to terminate the
general contractor when a subcontractor gives notice
of a lien in order to take advantage of the reduction
for the cost to complete the work. In other words,
because [the plaintiff’s] interpretation of the statute[s]
would permit the lienable fund to be reduced when the
general contractor defaults or is terminated, a property
owner who otherwise had no intention to terminate the
general contractor may do so after receiving notice of
a lien in order to reduce the amount available to the
lienor.’’ The defendants contend that the plain language
of § 49-33 (f) ‘‘provides that the lienable fund is reduced
by the cost to complete the contract, and that reduction
applies whether or not the general contractor defaults.’’
During oral argument before this court, the plaintiff
explained that it believed that the defendants’ construc-
tion of our statutory scheme regarding mechanic’s liens
would lead to absurd results because a lien or a bond,
specifically meant to protect the subcontractors, includ-
ing second tier subcontractors, would be useless
because a nondefaulted general contractor, after a prop-
erly noticed lien had been filed by a subcontractor,
could get paid fully, including profit, thereby exhausting
the fund, and the subcontractors would be left with no
secured claim, despite their preference in the statute.
During questioning by the appellate panel, this court
asked Skanska’s counsel whether a nondefaulted gen-
eral contractor essentially could just ask for full pay-
ment from the property owner in exchange for bonding
off every subcontractor lien, including second tier sub-
contractors, thereby reducing the lienable fund to zero
and avoiding the preference in the statutes in favor of
the subcontractors. Skanska’s counsel responded that
the second tier subcontractors still could bring a claim
against the party with whom they had a written con-
tract, and, he argued, if the situation were similar to the
present case, where ‘‘there’s a bad actor sub[contractor,
then] somebody gets the short end of the stick . . . .’’
We conclude that the defendants’ construction of our
statutes is not only inconsistent with the language of
the statutes, but it would lead to absurd results, incon-
sistent with the legislative purpose of those statutes.
Although in derogation of the common law, the reme-
dial purpose of § 49-33 is to ‘‘furnish security for a
contractor’s labor and materials . . . .’’ Seaman v. Cli-
mate Control Corp., supra, 181 Conn. 597. Pursuant to
§§ 49-33 and 49-36, the amount of a mechanic’s lien may
not exceed the price that the property owner has agreed
to pay for the building being erected or improved, and
the property owner is entitled to credit for payments
it made in good faith to the general contractor before
receipt of notice of such a lien. See id., 596. If the
contract price that was agreed on by the general con-
tractor and the property owner is insufficient to cover
all the liens, ‘‘claimants other than the original contrac-
tor are to be paid first, and, if necessary, on a pro rata
basis.’’ (Emphasis added.) Id.; see General Statutes § 49-
36 (b). ‘‘[A]ll subcontractors are preferred to the general
contractor if the lienable fund is inadequate to cover
outstanding claims.’’ Id., 605. ‘‘[I]f the owner still owes
money to the general contractor when a second-tier
subcontractor files a mechanic’s lien, the second-tier
subcontractor can seek recovery from the owner even
where the general contractor has made full payment to
the first-tier subcontractor who hired the second-tier
subcontractor.’’ (Emphasis added.) D. Rosengren, 13
Connecticut Practice Series: Construction Law (2005)
§ 6:2, p. 125.
‘‘In [General Statutes (1918 Rev.) §] 5220 [(now § 49-
36)], the opening provision clearly applies to all
mechanics’ liens by whomsoever held, and provides
that they shall not exceed the total which the owner
was to pay under his contract. It then explicitly provides
that the contractor’s own lien shall be subordinated
to those of subcontractors, entitling them to payment
before him, and if the available fund does not pay the
subcontractor liens in full, the fund must be appor-
tioned between them. The subcontractor’s right to a
lien, though inchoate comes into existence when he
begins furnishing materials . . . and becomes per-
fected when he files his lien having complied with all
statutory requirements. These rights which are given
the subcontractor cannot be taken from him or abridged
by act of the contractor or the owner.’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.)
Purcell, Inc. v. Libbey, 111 Conn. 132, 137, 149 A. 225
(1930).
The defendants contend that older case law is not
controlling because there was an important change in
our statutes that occurred in 1953; see Public Acts 1953,
No. 502, § 1; that modified what is now § 49-33. They
contend that No. 502 of the 1953 Public Acts ‘‘add[ed]
the language in what is now . . . § 49-33 (f) providing
that the amount available to subcontractors is reduced
by the ‘reasonable cost . . . of satisfactory completion
of the contract . . .’ ’’ and that this language applies
‘‘whether or not the general contractor defaults.’’ The
legislative history of No. 502 of the 1953 Public Acts
does not support the defendants’ position.
In 1953, the House of Representatives introduced
House Bill No. 1733, 1953 Sess., which ultimately
became No. 502 of the 1953 Public Acts, modifying
General Statutes (Cum. Supp. 1951) § 1273b (formerly
General Statutes (1949 Rev.) § 7217), now § 49-33. In
1953, the legislature added the language, ‘‘except that
such subcontractor shall have such a lien or right to
claim such a lien in the event of any default by such
person . . . provided the total of such lien or liens
shall not attach . . . to a greater amount in the whole
than the amount by which the contract price between
the owner and such person exceeds the reasonable cost
. . . of satisfactory completion of the contract plus any
damages resulting from such default for which such
person might be held liable to the owner and all bona
fide payments . . . made by the owner before receiv-
ing notice of such liens or liens’’; see No. 502 of the
1953 Public Acts; which remains a part of § 49-33 today,
specifically, § 49-33 (f). The defendants contend that
the legislature meant this language to apply even when
the general contractor is not in default. The plaintiff
contends that this language applies only when the gen-
eral contractor is in default. In light of the legislative
history of No. 502 of the 1953 Public Acts and the pur-
pose for which it was enacted, we agree with the
plaintiff.
House Bill No. 1733 was introduced to correct a statu-
tory problem that was uncovered by our Supreme Court
in Rowley v. Salladin, 139 Conn. 642, 96 A.2d 219 (1953).
In Rowley, the general contractor had abandoned the
project without paying the subcontractor, who then
filed a mechanic’s lien. Id., 644. The property owner
argued that the subcontractor had no right to the lien
because, pursuant to General Statutes (Cum. Supp.
1951) § 1273b (now § 49-33), the subcontractor was sub-
rogated only to the rights of the general contractor,
who had no right to a lien because he had defaulted.
Id. After construing the plain language of the statute,
our Supreme Court agreed. Id., 644–45.
In response to Rowley, members of the legislature
introduced House Bill No. 1733. Representative Kenyon
W. Greene, in moving for acceptance of the bill,
explained that it was introduced to ‘‘provid[e] [that] the
subcontractor’s right of [a] mechanic’s lien shall not be
lost by default of the general contractor . . . .’’ 5 H.R.
Proc., Pt. 8, 1953 Sess., pp. 3313–14; see also Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 3,
1953 Sess., pp. 760–63. Thus, what is now § 49-33 was
amended to ensure that an owner could not use a gen-
eral contractor’s default as an excuse not to pay a sub-
contractor for work that benefitted the owner. At the
same time, the amendment protected the owner who
was forced to incur additional costs due to the general
contractor’s default. There simply is nothing in the lan-
guage or legislative history of the 1953 amendment that
suggests that an owner is entitled to take credit for
payments made to a general contractor not in default
after having received notice of the subcontractor’s lien.
In fact, such an interpretation would run contrary to
the 1953 amendment’s intent to provide greater protec-
tion to subcontractors.
Prior to the 1953 amendment to what is now § 49-
33, the only amounts the owner was entitled to credit
against the lienable fund were ‘‘whatever payments he
shall have made, in good faith, to the [general] contrac-
tor or contractors before receiving notice of such lien
or liens.’’ General Statutes (1949 Rev.) § 7220. The 1953
amendment gave the owner an additional credit for any
funds it had to pay after notice of the subcontractor’s
lien, due to the general contractor’s default. Such pro-
tection for the owner makes sense because, once the
general contractor defaults, the owner would be forced
to find someone else to complete the project and would
be required to pay that third party for their work. Under
that specific circumstance, the legislature chose to
place the risk of the defaulting general contractor on
the subcontractor and not the owner, to the extent the
owner’s costs of completing the construction project
equaled or exceeded the amount he had contracted to
pay the general contractor. However, where the general
contractor is not in default, there is no need to protect
the owner by permitting it to continue to pay the general
contractor at the expense of subcontractors who have
filed valid mechanic’s liens on the owner’s property. The
owner need only withhold payments from the general
contractor until the subcontractor’s mechanic’s liens
are resolved. There is no third party who was previously
a stranger to the construction project that must be
compensated for its work. In such a circumstance, the
risk of not getting paid properly is placed on the general
contractor, consistent with the preference in favor of
subcontractors expressly set forth in § 49-36 (b). Put
another way, expanding the language of § 49-33 to pay-
ments made when the general contractor is not in
default, as suggested by the defendants, would eviscer-
ate the protections provided to subcontractors in § 49-
36 (b) and (c).
Furthermore, the defendants’ interpretation of the
relevant statutes would lead to absurd results in that
it would permit an owner and a general contractor to
render a subcontractor’s lien essentially meaningless.
The facts of this case show exactly how such a result
can be accomplished. It is undisputed that at the time
the plaintiff filed its mechanic’s lien there were more
than sufficient funds still unpaid by the hospital to Skan-
ska to cover the plaintiff’s claim. Rather than withhold-
ing money from Skanska to pay any amounts duly owed
to the plaintiff pursuant to its lien, the hospital paid the
full contract amount to Skanska. Under the defendants’
interpretation of § 49-33, doing so wiped out the lienable
fund, and, with it, the plaintiff’s lien, and created a
preference in favor of the general contractor at the
expense of a subcontractor. Not only is there nothing
in the language or legislative history of § 49-33 that
remotely suggests such a result; the result is flatly con-
trary to the preference in favor of subcontractors set
forth in § 49-36 (b). We cannot conclude that the legisla-
ture intended a result that is so completely at odds with
the remedial purpose of the mechanic’s lien statutes.
Finally, the defendants’ claim that the plaintiff’s read-
ing of §§ 49-33 and 49-36 would lead to the perverse
result that owners would be incentivized to find a rea-
son to hold general contractors in default makes little
sense. According to the defendants, an owner who has
received notice of a mechanic’s lien from a subcontrac-
tor would be motivated to manufacture a default by the
general contractor in order to terminate the general
contractor in order to reduce the size of the lienable
fund available to the subcontractor. There are several
problems with this hypothesis. First, it ignores what
could be significant transaction costs the owner would
incur by replacing a performing contactor with a new
contractor unfamiliar with the project. Second, it
ignores the fact that, by engaging in such conduct, the
owner would expose itself to liability to the general
contractor for breach of contract. Third, to the extent
the owner concluded that it would be profitable to
breach its contract with the general contractor, whether
a subcontractor filed a mechanic’s lien likely would not
change that conclusion. Finally, the defendants have
not described a precise scenario that would lead an
owner to manufacture a default by the general contrac-
tor, and we cannot think of a scenario in which the
owner would not be acting against its economic interest
by terminating the general contractor simply to reduce
the amount available to a subcontractor lienor. The
amount available to the subcontractor lienor would only
be reduced to the extent that the owner paid an amount
equal to or greater than its contract price with the
defaulted general contractor. It would defy logic for an
owner to terminate a general contractor just so it can
incur more costs to avoid paying the subcontractor
lienor.
On the basis of the foregoing analysis, we conclude
that the lienable fund was the amount owed by the
hospital to Skanska at the time the plaintiff gave notice
of its mechanic’s lien to the hospital in accordance
with §§ 49-34 and 49-35. Accordingly, the defendants’
alternative ground for affirmance fails.
The judgment is reversed with respect to counts two
and three of the plaintiff’s complaint, and the case is
remanded to the trial court for further proceedings
according to law; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The plaintiff withdrew the matter as to the named defendant, The Stam-
ford Hospital. Fidelity is the surety that issued a bond in substitution for
the mechanic’s lien that the plaintiff had filed against the hospital. See
General Statutes §§ 49-33 and 49-37.
2
Semac Electrical Company, Inc. (Semac), also is a defendant in this
matter. Although Semac initially had appeared by counsel in the trial court,
the court, on December 12, 2017, granted counsel’s motion for permission
to withdraw its appearance. No further action appears to have been taken
against Semac, who now is a nonappearing defendant, and the matter
remains pending as to Semac in the trial court. For purposes of this appeal,
we refer to Skanska and Fidelity as the defendants unless further clarification
is necessary.
3
The court also rendered summary judgment in favor of Skanska as to
count one of the plaintiff’s complaint, which alleged that Skanska had
breached a contract with the plaintiff. The plaintiff does not challenge that
judgment in this appeal. Thus, we affirm the judgment in favor of Skanska
as to count one.
4
Although Skanska had alleged in its answer that it fully had paid Semac
for the plaintiff’s work, Miller made no such attestation in his affidavit. In
fact, he averred that ‘‘[t]he total amount paid to the replacement electrical
contractors exceeded the remaining amount of the original subcontract
with Semac.’’ (Emphasis added.)
5
Because we conclude that there is a genuine issue of material fact as
to whether Skanska ever paid for the plaintiff’s services, we need not address
whether the plaintiff could prevail on its claim in the event that Skanska
fully had paid Semac for the plaintiff’s work, if the plaintiff proves that
Skanska, despite such payment, had requested that the plaintiff continue
performing work on the project. We also need not determine whether there
are additional issues of material fact that rendered summary judgment inap-
propriate.
6
General Statutes § 49-33 provides 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. . . .
‘‘(e) A mechanic’s lien shall not attach to any such building or its appurte-
nances or to the land on which the same stands or to any lot or to any plot
of land, in favor of any subcontractor to a greater extent in the whole than
the amount which the owner has agreed to pay to any person through whom
the subcontractor claims subject to the provisions of section 49-36.
‘‘(f) Any such subcontractor shall be subrogated to the rights of the person
through whom the subcontractor claims, except that the subcontractor shall
have a mechanic’s lien or right to claim a mechanic’s lien in the event of
any default by that person subject to the provisions of sections 49-34, 49-
35 and 49-36, provided the total of such lien or liens shall not attach to any
building or its appurtenances, or to the land on which the same stands or
to any lot or to any plot of land, to a greater amount in the whole than the
amount by which the contract price between the owner and the person
through whom the subcontractor claims exceeds the reasonable cost, either
estimated or actual, as the case may be, of satisfactory completion of the
contract plus any damages resulting from such default for which that person
might be held liable to the owner and all bona fide payments, as defined
in section 49-36, made by the owner before receiving notice of such lien or
liens. . . .’’
General Statutes § 49-36 provides in relevant part: ‘‘(a) No mechanic’s
lien may attach to any building or its appurtenances, or to the land on which
the same stands, or any lot, or any plot of land, in favor of any person, to
a greater amount in the whole than the price which the owner agreed to
pay for the building and its appurtenances or the development of any such
lot, or the development of any such plot of land. . . .
‘‘(c) In determining the amount to which any lien or liens may attach
upon any land or building, or lot or plot of land, the owner of the land or
building or lot or plot of land shall be allowed whatever payments he has
made, in good faith, to the original contractor or contractors, before receiving
notice of the lien or liens. No payments made in advance of the time stipu-
lated in the original contract may be considered as made in good faith,
unless notice of intention to make the payment has been given in writing
to each person known to have furnished materials or rendered services at
least five days before the payment is made.’’
General Statutes § 49-37 provides in relevant part: ‘‘(a) Whenever any
mechanic’s lien has been placed upon any real estate pursuant to sections
49-33, 49-34 and 49-35, the owner of that real estate, or any person interested
in it, may make an application to any judge of the Superior Court that the
lien be dissolved upon the substitution of a bond with surety, and the judge
shall order reasonable notice to be given to the lienor of the application.
. . .’’
7
Pursuant to Practice Book § 63-4, Skanska and Fidelity submitted this
argument as an alternative ground for affirmance.
8
We note that the lien statutes referenced in Seaman v. Climate Control
Corp., supra, 181 Conn. 592, are from the 1979 revision of the General
Statutes. Although several of those statutes have been amended by the
legislature since our Supreme Court’s decision in Seaman, those amend-
ments have no bearing on the merits of this appeal.
9
General Statutes § 49-34 provides: ‘‘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 materi-
als, (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.’’
10
General Statutes § 49-35 provides in relevant part: ‘‘(a) No person other
than the original contractor . . . or a subcontractor whose contract with
the original contractor is in writing and has been assented to in writing by
the other party to the original contract, is entitled to claim any such mechan-
ic’s lien, unless, after commencing, and not later than ninety days after
ceasing, to furnish materials or render services for such construction . . .
such person gives written notice to the owner of the building, lot or plot
of land and to the original contractor that he or she has furnished or com-
menced to furnish materials, or rendered or commenced to render services,
and intends to claim a lien therefor on the building, lot or plot of land;
provided an original contractor shall not be entitled to such notice, unless,
not later than fifteen days after commencing the construction . . . such
original contractor lodges with the town clerk of the town in which the
building, lot or plot of land is situated an affidavit in writing, which shall
be recorded by the town clerk with deeds of land, (1) stating the name
under which such original contractor conducts business, (2) stating the
original contractor’s business address, and (3) describing the building, lot
or plot of land. . . .
‘‘(b) No subcontractor, without a written contract complying with the
provisions of this section, and no person who furnishes material or renders
services by virtue of a contract with the original contractor or with any
subcontractor, may be required to obtain an agreement with, or the consent
of, the owner of the land, as provided in section 49-33, to enable him to
claim a lien under this section.’’
11
Our Supreme Court explained in H & S Torrington Associates that the
enactment of the notice requirement set forth in § 49-34 ‘‘was intended to
protect the due process rights of property owners who would not otherwise
have actual notice of the recorded lien.’’ H & S Torrington Associates v.
Lutz Engineering Co., supra, 185 Conn. 554. It also explained that the
enactment of the notice requirement set forth in § 49-35 ‘‘was concerned
with the protection of the owner of the property, who might not otherwise
know what, if any, subcontractors the principal contractor had employed
. . . so that payments to the main contractor may be withheld . . . .’’
(Citations omitted; emphasis added; internal quotation marks omitted.) Id.
A subcontractor may satisfy simultaneously in one document the notice
requirements of both §§ 49-34 and 49-35. Id., 555. ‘‘Two separate notices are
not necessary to accomplish the purpose of the statutes.’’ Id.
12
The legislature’s desire to protect the rights of subcontractors, further
is demonstrated by the enactment of NO. 99-153 of the 1999 Public Acts
(P.A. 99-153), codified at General Statutes § 42-158l. In § 4 of P.A. 99-153,
the legislature ‘‘placed substantial restrictions on a party’s right to include
lien waivers in construction contracts.’’ D. Rosengren, 13 Connecticut Prac-
tice Series: Construction Law (2005) § 6:8, p. 140. Furthermore, ‘‘it is well
settled that the general contractor cannot bargain away the lien rights of
subcontractors and materialmen who: (1) are not themselves privy to the
general contractor’s agreement containing the waiver; (2) do not agree with
the general contractor to waive their lien right; or (3) do not adopt the
lien waiver provision as incorporated in the contract between the general
contractor and the owner.’’ Id., pp. 141–42.
Subsection (a) of § 42-158l provides: ‘‘Any provision in a construction
contract or any periodic lien waiver issued pursuant to a construction con-
tract that purports to waive or release the right of a contractor, subcontractor
or supplier engaged to perform services, perform labor or furnish materials
under the construction contract to (1) claim a mechanic’s lien, or (2) make
a claim against a payment bond, for services, labor or materials which have
not yet been performed and paid for shall be void and of no effect.’’
13
General Statutes § 42a-2-312 provides: ‘‘(1) Subject to subsection (2)
there is in a contract for sale a warranty by the seller that (a) the title
conveyed shall be good, and its transfer rightful; and (b) the goods shall be
delivered free from any security interest or other lien or encumbrance of
which the buyer at the time of contracting has no knowledge.
‘‘(2) A warranty under subsection (1) will be excluded or modified only
by specific language or by circumstances which give the buyer reason to
know that the person selling does not claim title in himself or that he is
purporting to sell only such right or title as he or a third person may have.
‘‘(3) Unless otherwise agreed a seller who is a merchant regularly dealing
in goods of the kind warrants that the goods shall be delivered free of the
rightful claim of any third person by way of infringement or the like but a
buyer who furnishes specifications to the seller must hold the seller harmless
against any such claim which arises out of compliance with the specifi-
cations.’’
General Statutes § 42a-3-417, as amended by No. 91-304 of the 1991 Public
Acts, provides: ‘‘(a) If an unaccepted draft is presented to the drawee for
payment or acceptance and the drawee pays or accepts the draft, (i) the
person obtaining payment or acceptance, at the time of presentment, and
(ii) a previous transferor of the draft, at the time of transfer, warrant to the
drawee making payment or accepting the draft in good faith that: (1) The
warrantor is, or was, at the time the warrantor transferred the draft, a person
entitled to enforce the draft or authorized to obtain payment or acceptance
of the draft on behalf of a person entitled to enforce the draft; (2) the draft
has not been altered; and (3) the warrantor has no knowledge that the
signature of the drawer of the draft is unauthorized.
‘‘(b) A drawee making payment may recover from any warrantor damages
for breach of warranty equal to the amount paid by the drawee less the
amount the drawee received or is entitled to receive from the drawer because
of the payment. In addition, the drawee is entitled to compensation for
expenses and loss of interest resulting from the breach. The right of the
drawee to recover damages under this subsection is not affected by any
failure of the drawee to exercise ordinary care in making payment. If the
drawee accepts the draft, breach of warranty is a defense to the obligation
of the acceptor. If the acceptor makes payment with respect to the draft,
the acceptor is entitled to recover from any warrantor for breach of warranty
the amounts stated in this subsection.
‘‘(c) If a drawee asserts a claim for breach of warranty under subsection
(a) based on an unauthorized endorsement of the draft or an alteration of
the draft, the warrantor may defend by proving that the endorsement is
effective under section 42a-3-404 or 42a-3-405 or the drawer is precluded
under section 42a-3-406 or 42a-4-406 from asserting against the drawee the
unauthorized endorsement or alteration.
‘‘(d) If (i) a dishonored draft is presented for payment to the drawer or
an endorser or (ii) any other instrument is presented for payment to a party
obliged to pay the instrument, and (iii) payment is received, the following
rules apply: (1) The person obtaining payment and a prior transferor of the
instrument warrant to the person making payment in good faith that the
warrantor is, or was, at the time the warrantor transferred the instrument,
a person entitled to enforce the instrument or authorized to obtain payment
on behalf of a person entitled to enforce the instrument. (2) The person
making payment may recover from any warrantor for breach of warranty
an amount equal to the amount paid plus expenses and loss of interest
resulting from the breach.
‘‘(e) The warranties stated in subsections (a) and (d) cannot be disclaimed
with respect to checks. Unless notice of a claim for breach of warranty is
given to the warrantor within thirty days after the claimant has reason to
know of the breach and the identity of the warrantor, the liability of the
warrantor under subsection (b) or (d) is discharged to the extent of any
loss caused by the delay in giving notice of the claim.
‘‘(f) A cause of action for breach of warranty under this section accrues
when the claimant has reason to know of the breach.’’
14
We note that § 49-33, referenced in Rene Dry Wall Co. v. Strawberry
Hill Associates, supra, 182 Conn. 568, is from the 1979 revision of the General
Statutes. Although § 49-33 has been amended by the legislature since our
Supreme Court’s decision in Rene Dry Wall Co., those amendments have
no bearing on the merits of this appeal.