Swerdloff v. AEG Design/Build, Inc.

550 A.2d 306, 209 Conn. 185, 1988 Conn. LEXIS 315
Supreme Court of Connecticut·Decided November 15, 1988·No. 13357·Published·Cited by 15 cases

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] in 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] ment 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] because § 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).

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

550 A.2d 306 (Swerdloff v. AEG Design/Build, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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