NEW IMAGE v. VILLAGE, 86 Conn. App. 692 (2004)

862 A.2d 692

No. AC 24241.Appellate Court of Connecticut.

Syllabus
The defendant M Co., by way of a cross claim filed in an action brought by the plaintiff, sought to foreclose a mechanic’s lien M Co. had filed in connection with labor it had furnished for a construction project on certain property owned by the defendant V Co. V Co. filed a motion to discharge the hen, which the trial court granted pursuant to statute (§ 49-35b [b] [2] [B]), determining the invalidity of the lien to have been established by clear and convincing evidence owing to M Co.’s failure to file a notice of lis pendens on the property. Subsequently, the same day that the discharge order was issued, a second trial judge, using the same order page as the first judge had used, issued an order, pursuant to statute (§ 49-35b [b] [4]), directing that the lien be discharged on the posting of a bond by V Co. M Co. appealed to this court challenging only the order of the first trial judge determining that the invalidity of the lien had been established by clear and convincing evidence. Held that M Co.’s appeal had to be dismissed as moot; the order of the second trial judge having been made pursuant to a different statutory provision than and subsequent to the first order, the second order superseded the first order as the operative discharge order and thus rendered moot the issue of whether the first trial judge improperly discharged M Co.’s lien owing to its failure to file a lis pendens, the seven day stay of the discharge order provided by statute (§ 49-35c [b]) for purposes of appeal did not prevent the second trial judge from replacing the prior § 49-35b discharge order with a new order within that time during a subsequent proceeding in the same case, and M Co. did not appeal from the second discharge order during the seven day appeal period.

Schaller, Bishop and Mihalakos, Js.

Argued September 14, 2004.

Officially released December 28, 2004.

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Procedural History
Action to foreclose a mechanic’s lien on certain of the named defendant’s real property, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the defendant Mechanical Plumbing Heating, Inc., filed a cross claim against the named defendant; thereafter, the court, Munro, J., granted the named defendant’s motion to discharge the plaintiffs mechanic’s lien; subsequently, the court, Anthony V. DeMayo, judge trial referee, granted the named defendant’s motion to discharge the mechanic’s lien held by the defendant Mechanical Plumbing Heating, Inc.; thereafter, the matter was tried to the court, Munro, J.; judgment ordering the conditional discharge of the mechanic’s lien held by the defendant Mechanical Plumbing Heating, Inc., from which the defendant Mechanical Plumbing Heating, Inc. appealed to this court. Appeal dismissed.

James F. Cirillo, Jr., for the appellant (defendant Mechanical Plumbing Heating, Inc.).

Gregory M. Harris, for the appellee (named defendant).

Opinion
SCHALLER, J.

The defendant Mechanical Plumbing Heating, Inc. (Mechanical), appeals challenging the order of the trial court granting the motion filed by the defendant The Village at Mariner’s Point Limited Partnership (Village) to discharge Mechanical’s mechanic’s lien on Village’s premises. Mechanical claims that the court improperly concluded that the invalidity of the hen had been established by clear and convincing evidence. We dismiss the appeal as moot.

The following facts and procedural history are relevant to our disposition of this appeal. On October 24,

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2001, the plaintiff, New Image Contractors, LLC (New Image), commenced an action to foreclose a mechanic’s lien on Village’s premises at 111 South Shore Drive in East Haven (premises).[1] New Image alleged that it had provided labor and materials for a construction project on the premises pursuant to an agreement with the defendant Peter J. Sangermano Construction, Inc. (Sangermano) and that Sangermano still owed $11,735.14 for the services and materials it had provided. In addition, New Image alleged that it had filed a mechanic’s lien on the premises on October 20, 2001, and had provided the required notice to Village. In its complaint, New Image also named other lien holders, including Mechanical, as defendants.

On March 8, 2002, Mechanical filed a cross claim against Village, also seeking foreclosure of a mechanic’s lien on the premises. Mechanical alleged that pursuant to an agreement with Sangermano, it had furnished labor on the premises owned by Village and that Sangermano still owed $189,763.61 for the labor it had provided. Mechanical alleged that it had filed a mechanic’s lien on the premises on March 9, 2001.

On March 7, 2003, Village filed a motion to discharge or for a reduction of Mechanical’s mechanic’s lien.[2]

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Mechanical filed a request for oral argument on the motion, which the trial court granted. On May 12, 2003, the court Anthony V. DeMayo, judge trial referee, held a hearing on the motion. The parties stated that another trial court was awaiting the outcome of the hearing so it could determine whether it would be necessary to proceed with the evidentiary hearing in Mechanical’s foreclosure action scheduled for that same day. The parties agreed that the dispositive issue regarding the motion was whether Mechanical’s failure to record a notice of lis pendens on the land records invalidated its mechanic’s lien.

Village argued that the lien ceased to be valid after Mechanical failed to record a notice of lis pendens in the land records within one year from the date it filed the hen as required by General Statutes § 49-39.[3] Mechanical argued that because New Image had filed a Us pendens identifying Mechanical as a party to its foreclosure action and because Mechanical had commenced a foreclosure action by cross claim, Village had actual notice of the foreclosure action, which satisfied the Us pendens requirement of §49-39.

Judge DeMayo concluded that Mechanical’s failure to file a Us pendens was fatal to its mechanic’s lien and ordered that the lien be discharged in full “because the invalidity of the lien has been established by clear and

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convincing evidence.”[4] At the conclusion of the hearing, Judge DeMayo informed the parties that he would have the completed order delivered to the court scheduled to hear the foreclosure action. Later that day, Judge Munro, who presided over Mechanical’s foreclosure action, issued a subsequent order regarding Village’s motion to discharge the lien. Judge Munro used the same order page signed by Judge DeMayo, but ordered the lien discharged upon the posting of a $100 bond by Village.[5] On June 2, 2003, Village posted a $100 bond pursuant to the second order.

On May 16, 2003, Mechanical appealed challenging the first order discharging the mechanic’s lien and filed an application for a stay of the order pending disposition of the appeal.[6] On June 2, 2003, Judge DeMayo granted the application for a stay on the condition that Mechanical post a surety bond sufficient to indemnify Village for any damages resulting from the stay.[7] On June 26, 2003, the parties agreed to the posting of a $10,000 bond. At oral argument on September 14, 2004, however, Mechanical conceded that it never posted the $10,000 bond.

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On December 15, 2003, Village filed a motion to dismiss the appeal, arguing that the lien was discharged on June 2, 2003, when it posted the $100 bond pursuant to the second order, thus rendering Mechanical’s appeal from the first order moot. On December 26, 2003, Village filed another motion to dismiss the appeal, arguing that the appeal was also moot because the conditional stay ordered by Judge DeMayo expired when Mechanical failed to post the $10,000 bond. On January 21, 2004, this court denied the motions without prejudice and ordered the parties to brief the mootness issues. Additional facts will be set forth as necessary.

On appeal, Mechanical claims that Judge DeMayo improperly discharged its mechanic’s lien on Village’s premises. Specifically, it contends that it was improper to conclude that the invalidity of the lien had been established by clear and convincing evidence. Mechanical argues that its failure to file its own lis pendens, as required by § 49-39, was not fatal to its mechanic’s lien because the purpose of the statute — to give constructive notice to persons seeking to purchase or encumber the premises — was satisfied when New Image filed a lis pendens identifying Mechanical as a party to a foreclosure action. Village counters by arguing that (1) the appeal is moot[8] and (2) Judge DeMayo’s conclusion regarding the invalidity of Mechanical’s lien was proper

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because Mechanical failed to record a notice of lis pendens as required by § 49-39.[9]

We first address whether the appeal is moot. Our standard of review regarding mootness is well settled. Mootness is a threshold issue that implicates subject matter jurisdiction, which “imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.”Hechtman v. Savitsky, 62 Conn. App. 654, 657, 772 A.2d 673 (2001). “Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.” (Internal quotation marks omitted.) Twichell v. Guite, 53 Conn. App. 42, 51, 728 A.2d 1121 (1999). “[T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Internal quotation marks omitted.) Mazzacane v Elliott, 73 Conn. App. 696, 701, 812 A.2d 37 (2002).

In this case, on May 12, 2003, following a hearing on Village’s motion to discharge, Judge DeMayo ordered that the lien be discharged in full, concluding that the invalidity of the lien had been established by clear and

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convincing evidence.[10] Later that day, Judge Munro, using the same order page signed by Judge DeMayo, ordered the lien discharged upon the posting of a $100 bond by Village. Both orders were made pursuant to General Statues § 49-35b
(b), which provides in relevant part that, when ruling upon a motion for reduction or discharge of a lien, “the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established; or (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.” (Emphasis added.) Judge DeMayo expressly made his discharge order pursuant to § 49-35b (b) (2) (B). Judge Munro, by ordering a bond, implicitly made her discharge order pursuant to § 49-35b
(b) (4). Because it was made pursuant to a different statutory provision and was made subsequent to the first order, we conclude that the second order superseded the first order as the operative discharge order.

While a seven day stay automatically followed the first order as provided by General Statutes § 49-35c (b), we conclude that the stay did not prevent Judge Munro from making a discharge order that superseded the first order. General statutes § 49-35c (b) provides in relevant part: “The effect of the [discharge] order shall be automatically stayed for the seven-day [appeal] period. . . .”

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This subsection must be read in conjunction with subsection (d), which provides: “Any order of discharge or reduction or any order of any such stay shall take effect upon recording of a certified copy thereof in the office of the town clerk in which such lien was originally recorded. The clerk of the court in which any such order is issued shall not deliver any certified copies thereof until the time for taking an appeal has elapsed or, if an appeal is taken and an application for a stay of the order is filed, until such time as a decision granting or denying the stay has been rendered.” Together, these provisions prevent a § 49-35b discharge order from taking effect during the seven day appeal period. The seven day stay, however, does not prevent a court from replacing a prior § 49-35b discharge order with a new order during a subsequent proceeding.

Although a § 49-35b discharge order is considered to be a final judgment for purposes of appeal pursuant to §49-35c (a), it properly may be considered as an order or ruling on a motion for other purposes. As such, there is nothing to prevent it from being superseded by another discharge order made during a subsequent proceeding in the same case. When considering the law of the case doctrine, our Supreme Court has stated that “[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [A] judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982).

Mechanical has appealed only from the first order.[11] As previously discussed, this order was superseded by

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the second order. We therefore conclude that Mechanical’s appeal is moot. An appeal is moot when “the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.”Twichell v. Guite, supra, 53 Conn. App. 51. The issue of whether Judge DeMayo improperly discharged the hen because Mechanical failed to file its own lis pendens as required by § 49-39 became moot when the first order was superseded by the second order.

Following the second order, Mechanical retained the benefit of the seven day statutory stay provided by § 49-35c (b). Mechanical also was entitled to take an appeal from the second order, but failed to do so during the seven day appeal period provided by § 49-35c (b). Once the automatic stay expired, Village complied with the second order by posting the $100 bond and effectively discharged the lien by following the procedures provided by § 49-35c (d).[12]

The appeal is dismissed.

In this opinion the other judges concurred.

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