Swerdloff v. AEG Design/Build, Inc.

550 A.2d 306, 209 Conn. 185, 1988 Conn. LEXIS 315
CourtSupreme Court of Connecticut
DecidedNovember 15, 1988
Docket13357
StatusPublished
Cited by15 cases

This text of 550 A.2d 306 (Swerdloff v. AEG Design/Build, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swerdloff v. AEG Design/Build, Inc., 550 A.2d 306, 209 Conn. 185, 1988 Conn. LEXIS 315 (Colo. 1988).

Opinion

Glass, J.

The plaintiffs, Mark and Ileen Swerdloff, appeal from the trial court’s order reducing but not discharging a mechanic’s lien placed on their real property by the defendant, AEG Design/Build, Inc. The plaintiffs argue that the trial court erred in refusing to consider their claim, first articulated during final argument, that the mechanic’s lien was invalid because the underlying home improvement agreement was not [186]*186in writing as required by the Home Improvement Act, General Statutes § 20-429.1 We find no error.

The facts relevant to this appeal are as follows. On June 2,1987, the defendant filed a mechanic’s lien on the plaintiffs’ property located on Linwold Drive in West Hartford. On June 9,1987, the plaintiffs filed an application to discharge the mechanic’s lien with the trial court. The application conformed to the format set forth in General Statutes § 49-35a (b).2 The plaintiffs did not refer to the Home Improvement Act in their application.

From June 22 through June 25,1987, the trial court held a hearing on the plaintiffs’ application to discharge the lien. During the hearing, brief testimony was elicited from one witness that the parties’ home improve[187]*187ment agreement was not in writing. The plaintiffs, however, did not refer to the Home Improvement Act during the evidentiary phase of the hearing. At the conclusion of the hearing, during final argument, the plaintiffs raised the claim that the lien was invalid under the Home Improvement Act.3 The trial court ruled that the act was not in issue and declined to consider the plaintiffs’ claim. On the basis of General Statutes §§ 49-35a and 49-35b,4 the court reduced but did not discharge the mechanic’s lien. On October 21,1987, the court denied the plaintiffs’ motion to reargue. The plaintiffs appealed to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023.

The dispositive issue in this case is whether the plaintiffs sufficiently raised the Home Improvement Act to place it in issue at the hearing. The plaintiffs argue that they could not refer to the act in their application [188]*188because § 49-35a (b) prescribes a “boiler plate” form for lien discharge applications, which cannot be varied by different or additional terms. As a consequence, they contend that the trial court erred when it declined to consider their claim when raised during final argument.

Even assuming that § 49-35a (b) precluded the plaintiffs from raising the Home Improvement Act in their application, Practice Book § 285A nevertheless required the plaintiffs to state the claim distinctly. The plaintiffs do not suggest that § 49-35a (b) overrides the requirement that a claim be distinctly stated to the trial court. Because we conclude that the plaintiffs failed distinctly to raise the act as required by Practice Book § 285A, we do not address their contention that the statutory form of § 49-35a (b) excused them from raising the claim in their pleadings.

Practice Book § 285A provides that “[i]f a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.” See also Practice Book § 4185 (supreme court not bound to consider claim unless it was distinctly raised at trial or arose subsequent to trial). A claim is “distinctly” raised if it is “ ‘ “so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” ’ ” (Emphasis omitted.) State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986); State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986); Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903). A claim “briefly suggested” is not “distinctly raised.” McKiernan v. Caldor, Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981); Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 177, 363 A.2d 22 (1975).

[189]*189It is well established that the trial court is entitled to decide a case on the theory on which it was tried. Silverman v. St. Joseph’s Hospital, supra, 176-77; Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546 (1951); see also Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985) (cases reviewed on appeal on theory on which they were tried and decided at trial); McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951) (party cannot try case on one theory and appeal on other); Fischer Co. v. Morrison, 137 Conn. 399, 404, 78 A.2d 242 (1951). The purpose of the Practice Book rules requiring claims to be raised distinctly is to enable the trial court to give meaningful consideration to the legal issues in the case. See, e.g., Roche v. Fairfield, 186 Conn. 490, 505 n.14, 442 A.2d 911 (1982) (trial court’s failure to consider claim vaguely alluded to in complaint but not made in trial briefs or in argument not subject to review); Tragakiss v. Dowling, 183 Conn. 72, 75-76, 438 A.2d 818 (1981) (no error where trial court refused to rule on defenses where evidence to show defenses raised consisted of draft finding and assignment of errors); cf. Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982) (where complaint drafted without setting forth facts that would call trial court’s attention to search for other grounds of relief, this court will not consider such grounds on appeal); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 465, 378 A.2d 547 (1977) (claim not reviewed on appeal where trial court had no opportunity to consider it). The requirement that claims be raised timely and distinctly also recognizes that counsel should not have the opportunity to surprise an opponent by interjecting a claim when opposing counsel is no longer in a position to present evidence against such a claim. Cf. State v. Kurvin, 186 Conn. 555, 566, 442 A.2d 1327 (1982) (per[190]*190mitting claims of error that could have been raised at trial to be raised first time on appeal encourages trials by ambuscade).

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Bluebook (online)
550 A.2d 306, 209 Conn. 185, 1988 Conn. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swerdloff-v-aeg-designbuild-inc-conn-1988.