author: FREEDMAN, J.

text:
    ADMINISTRATIVE AND RESIDUAL EMPLOYEES UNION, LOCAL 4200, AFT/CSFT, AFl-CIO v. STATE OF CONNECTICUT
    (AC 22774)
    Foti, Dranginis and Freedman, Js.
    Argued February 10
    officially released June 17, 2003

      James C. Ferguson, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

FREEDMAN, J.

The plaintiff, the Administrative and Residual Employees Union, Local 4200, AFT/CSFT, AFL-CIO (union), appeals from the judgment of the trial court, granting the motion of the defendant state of Connecticut to dismiss this declaratory judgment action. The union argues that the court improperly granted the state’s motion to dismiss based on lack of subject matter jurisdiction because of the union’s failure to file an application to vacate, modify or correct an arbitration award pursuant to General Statutes § § 52-418 and 52-419. We disagree with the union and, accordingly, affirm the judgment of the trial court.

The following facts are not in dispute. Prior to this action, the union and the state had entered into a collective bargaining agreement that governed, inter alia, the duration of the standard workweek and accrual of paid vacation leave. The parties’ agreement later was modified to allow a phased increase in the workweek from thirty five hours to forty hours between 1995 and 1998. On July 28,1998, the union filed a grievance contesting the state’s calculation of vacation time based on hours rather than on whole days as required by the agreement. By decision dated September 1, 2000, an arbitrator concluded that the state had violated the agreement by its treatment of past leave accruals. The arbitrator held that the grievants were entitled to the number of days previously earned, despite an increase in the number of hours in their standard workday. The arbitrator held, however, that this entitlement went back only as far as July 1, 1998.

The union then filed the present declaratory judgment action, requesting that the court order the state to calculate the vacation accruals on a daily basis rather than on an hourly basis for periods prior to July 1, 1998. The court granted the state’s motion to dismiss on the ground that the union had failed to file a timely application to vacate the decision of the arbitrator. The court concluded, on the basis of that failure, that it lacked jurisdiction over the declaratory judgment action. The union then filed the present appeal.

“We first set forth our standard of review governing an appeal from a judgment granting a motion to dismiss on the ground of a lack of subject matter jurisdiction. A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. . . . Our Supreme Court has determined that when ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 219, 815 A.2d 281 (2003).

The parties in the present case submitted the following issue to arbitration: “Did the State violate Article 4, Article 18, Article 19, Article 40, Article 41, Article 42, Article 43 or Article 38 Section Nine of the P-5 collective bargaining contract by the treatment of past leave accruals? If so, what shall the remedy be consistent with the contract?” In his award, the arbitrator stated: “The state violated the collective bargaining agreement by its treatment of past leave accruals. The grievants are entitled to the number of days of leave previously earned, despite an increase in the number of hours in their standard workday. As more fully described [in the arbitrator’s decision], such entitlement shall only go back to July 1, 1998, as a result of this award.” The union was successful, therefore, in its claim that the state had violated the collective bargaining agreement by converting past leave accruals to hours rather than days. The arbitrator, however, limited the entitlement to the award to July 1, 1998, and did not order relief retroactive to 1995, 1996 and 1997.

The union did not file an application to vacate or to modify the award. Rather, it brought the present action seeking a “declaratory judgment determining that the action of the Defendant in calculating vacation leave accrual based upon hours rather than days and thereby diminishing members of the Plaintiffs bargaining unit vacation banks is illegal and contrary to Connecticut General [Statutes] § 5-250 and the Plaintiffs Collective Bargaining Agreement.” The union further sought an order of the court requiring the state to calculate properly the vacation accruals of its members on a daily basis rather than on an hourly basis.

The union argues on appeal that the court improperly determined that it lacked subject matter jurisdiction to address the declaratory judgment action. The union contends that it is not seeking a review of the arbitration award pursuant to §§ 52-418 or 52-419 because it agrees with the arbitration award insofar as it construes the rights and responsibilities of the parties pursuant to the agreement. The union argues that the complaint sought, not a review of the arbitrator’s decision, but a determination of whether the state’s action in determining vacation and sick leave accrual, on the basis of hours rather than on the basis of days, was illegal and contrary to General Statutes §§ 5-247 and 5-250. The union contends that pursuant to those statutes, as interpreted by our Supreme Court in Nagy v. Employees’ Review Board, 249 Conn. 693, 735 A.2d 297 (1999), an employee who earns one day of sick or vacation leave is entitled to the use of one day of sick or vacation leave, regardless of the lengthening of the standard workweek. The union argues that the state’s action in providing leave, not in conformance with § § 5-247 and 5-250, is an action clearly in excess of what the legislature authorized and is ultra vires as defined by our Supreme Court in Nagy. Finally, the union contends that it exhausted its administrative remedies and could obtain no further relief through applications to vacate, modify or correct the award pursuant to §§ 52-418 and 52-419.

The state essentially posits three arguments in response to the union’s claims, namely, that the union is not entitled to relief because (1) this action is barred by the doctrine of sovereign immunity, (2) the union failed to file an application to vacate, modify or correct the arbitration award, and (3) the union failed to grieve the state’s calculation of past leave accruals for 1995, 1996 and 1997 in a timely manner. We conclude, as did the court, that because the union failed to file an application to vacate, modify or correct the arbitration award, pursuant to §§ 52-418 and 52-419, the court was without jurisdiction over the matter. The court, therefore, properly granted the state’s motion to dismiss this action for lack of subject matter jurisdiction.

“We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes. ... A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission.” (Citations omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473, 747 A.2d 480 (2000).

“In spite of the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy. . . . This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award.” (Citations omitted; internal quotation marks omitted.) Id., 474-75.

The challenge raised by the union is that the state has acted in violation of §§ 5-247 and 5-250 by calculating vacation leave accrual on the basis of hours rather than on the basis of days, thus providing employees with less than that to which they are entitled by statute. We interpret that claim as one raising a public policy challenge to the legality of the award; as such, the union could have filed an application to vacate the arbitration award on public policy grounds pursuant to § 52-418. Apparently satisfied, however, with the decision of the arbitrator with regard to the accruals for 1998, the union opted not to pursue that avenue to obtain relief for the years 1995, 1996 and 1997. To do so potentially would have jeopardized its partial victory with regard to the 1998 accruals. In light of the foregoing, we conclude that the union failed to exhaust the specific statutory procedures established for obtaining review of arbitration awards. See Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996).

Because the union failed to seek relief pursuant to §§ 52-418 and 52-419, the court properly dismissed the action on the ground of lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-419 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       In his decision, the arbitrator stated: “Under article fifteen, § 9 (3), of the contract, the arbitrator does not have the power to ‘impose any remedy or right of relief for any period of time prior to the effective date of the agreement, nor to grant pay retroactively for more than thirty (30) calendar days prior to the date a grievance was submitted at step one.’ In this case, the grievance was filed on July 28, 1998. The ‘30 day’ provision stated in article fifteen, § 9 (3), would normally allow the remedy to go back to a date prior to July 1. However, in the instant case, the remedy may only go back to July 1, 1998, due to the fact that the underlying grievance in this matter was found timely based upon a continuing violation theory, and the ‘trigger’ for that ‘continuing violation’ was the implementation of the 1998 phase of the increased workday.”

       In his decision dated November 3,1999, on the question of whether the union’s grievance was arbitrable, the arbitrator stated: “In this case, article fifteen, § 5, states in part [that] ‘[a] grievance shall be deemed waived unless submitted at Step 1 within thirty (30) days from the date of the cause of the grievance or within thirty (30) days from the date the grievant or any union representative or steward knew or through reasonable diligence should have known of the cause of the grievance.’ There is no dispute in this case that the union agreed to the phased in lengthening of the workweek. In addition, the evidence indicates that through a series of communications, including a June 12, 1995 memorandum, the union was informed by the state of the method to be used in calculating previously accrued vacation. Thus, upon a strict reading of article fifteen, § 5, the union had thirty days from on or about June or July, 1995, to file a grievance.”

       General Statutes § 5-247 (a) provides: “Each appointing authority shall grant, on account of illness or injury, to each full-time employee in a permanent position in the slate service who has furnished satisfactory proof of such illness or injury, such sick leave with pay as has accrued to his credit at the rate of one and one-quarter working days for each completed calendar month of continuous full-time service which may be computed on an hourly basis. Hourly computation of sick leave shall not diminish benefit entitlement. On or before October 1, 1980, the Commissioner of Administrative Services shall adopt regulations, in accordance with chapter 54, concerning the accrual, prorating and granting of sick leave with pay to other employees in the state service and extending sick leave with pay or with part pay for longer periods to full-time permanent employees disabled through illness or injury. Each such employee who retires under the provisions of chapter 66 shall be compensated, effective as of the date of his retirement, at the rate of one-fourth of such employee’s salary for sick leave accrued to his credit as of his last day on the active payroll up to a maximum payment equivalent to sixty days’ pay. Such payment for accumulated sick leave shall not be included in computing retirement income and shall be charged by the State Comptroller to the department, agency or institution in which the employee worked.”

       General Statutes § 5-250 (a) provides: “Each appointing authority shall grant to each full-time employee in a permanent position in the state service, who has worked at least one full calendar year, an annual vacation with pay of twenty-one consecutive calendar days or its equivalent. Each such employee who has completed twenty years of service shall be entitled to one day for each additional year up to twenty-five years of service, and each such employee with twenty-five or more years of service shall be entitled to not more than twenty days’ vacation, subject to regulations issued by the Commissioner of Administrative Services. The Commissioner of Administrative Services may adopt regulations, in accordance with the provisions of chapter 54, concerning the accrual, prorating and granting of vacation leave with pay as required. Computation of such vacation leave may be made on an hourly basis. Hourly computation of vacation leave shall not diminish benefit entitlement.”

       In Nagy v. Employees’ Review Board, supra, 249 Conn. 704-705, our Supreme Court held that the hourly calculation of sick and vacation leave authorized by General Statutes §§ 5-247 and 5-250 “may not operate to reduce the total number of days of sick and vacation leave that an employee has earned. Consequently, §§ 5-247 and 5-250 entitle the [employees] to the number of days of sick and vacation leave previously earned, despite an increase in the number of hours in their standard working day. Therefore, pursuant to §§ 5-247 and 5-250, an employee who earns one day of sick or vacation leave is entitled to utilize one day of sick or vacation leave regardless of any lengthening of the standard workday.” (Emphasis in original.)
      As correctly pointed out by the state, however, there was no jurisdictional issue in Nagy. The plaintiffs in that case appealed to the employees’ review board from the decision of the commissioner of the department of administrative services, who had denied their appeal. The plaintiffs then filed an administrative appeal from the board’s decision to the Superior Court pursuant to General Statutes § 4-183.

       The union did raise such a claim at arbitration. The arbitration award states in relevant part: “Finally, the union argues that the ‘state’s claim violates the public policy obligations of General Statutes § 52-418,’ and therefore ‘it would violate public policy for the arbitrator to conclude that even though the state never validly superseded General Statutes §§ 5-247 or 5-250, that the employee accrual banks should nevertheless remain unadjusted.’ ”

       We note that even if the union had sought relief pursuant to General Statutes §§ 52-418 and 52-419, the record supports the state’s argument that the union has waived its claim for retroactive relief by failing to grieve the accrual issue for 1995, 1996 and 1997. The failure to grieve that issue also implicates the exhaustion doctrine and would have, in itself, provided a basis for dismissal for lack of subject matter jurisdiction. See Hunt v. Prior, 236 Conn. 431-32.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    COLLIERS, DOW AND CONDON, INC. v. LEONARD J. SCHWARTZ ET AL.
    (AC 22367)
    Schaller, West and Hennessy, Js.

      Argued October 30, 2002
    officially released June 17, 2003

      Bruce G. MacDermid, for the appellant (plaintiff).

      Mark S. Shipman, with whom, on the brief, was Steven S. Sosensky, for the appellees (defendants).
   Opinion

WEST, J.

The plaintiff, Colliers, Dow and Condon, Inc., appeals from the judgment of the trial court rendered in favor of the defendants in this breach of contract action. The plaintiff claims that the court improperly (1) relied on parol evidence to vary an express term of a real estate brokerage agreement and (2) concluded that the plaintiff had failed to prove the defendants’ breach of the agreement by a preponderanee of the evidence. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are relevant to our disposition of the plaintiffs appeal. The controversy between the parties arises from the leasing of certain commercial property at 631-635-637 Farmington Avenue in West Hartford and owned by the defendant K.F. Associates, LLP. The defendant Leonard J. Schwartz is a managing partner in K.F. Associates, LLP.

The parties have conducted business with each other on several prior occasions. The plaintiff leased, and subsequently sold, one of Schwartz’s buildings located in Bloomfield. The plaintiff later sold a small office building in West Hartford for Schwartz. In 1994, the defendants engaged the plaintiffs services to lease 1450 square feet of the subject property. Following the success of those endeavors, the parties, in 1995, signed an agreement captioned “Exclusive Right To Sell/ Exchange Agreement,” under which the plaintiff was to secure a buyer for the subject premises.

In 1997, the parties signed an agreement captioned “Exclusive Right to Sell/Exchange/Lease Agreement,” which is the subject of this appeal. At that time, a company named Imagineers was occupying approximately 86 percent of the subject property as a tenant. Schwartz asked John Tully, a licensed brokerage representative of the plaintiff, to approach Imagineers about buying the property. Tully’s discussions with Imagineers culminated in a letter in which he presented two proposed acquisition plans for the property. Imagineers responded with a counteroffer at a price well below either of the plaintiffs proposals. As an alternative, Imagineers proposed to Schwartz directly that it continue to rent the building under a five year lease, with an option to renew for another five years, at $120,000 a year for the first five years and $130,000 a year for the second five year period. Under that arrangement, Imagineers would make certain improvements to the property, and provide landscaping and snow removal. A final counteroffer proposed an initial five year lease at $135,000 with an option for an additional five year lease at $145,000, with the defendants making necessary repairs.

Between March 3 and August 26, 1998, a series of letters were exchanged between Imagineers and Schwartz. On August 26,1998, Schwartz and Imagineers signed a lease agreement, effective February 1, 1999. On April 19, 1999, the plaintiff sent the defendants a bill for real estate brokerage services rendered pursuant to their exclusive listing agreement. The amount requested was 5 percent of the anticipated rent to be paid during the first five year lease period, or $42,750.80. Schwartz refused to make payment, and this action followed.

I

The plaintiffs first claim is that the court improperly relied on parol evidence to contradict an express term of the parties’ contract. We agree.

At the outset, we set forth the applicable standard of review. Ordinarily, “[o]n appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion. . . . Because the parol evidence rule is not an exclusionary rule of evidence, however, but a rule of substantive contract law . . . the defendants’ claim involves a question of law to which we afford plenary review.” (Citations omitted; internal quotation marks omitted.) Harold Cohn & Co. v. Harco International, LLC, 72 Conn. App. 43, 48, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).

The parol evidence rule is “premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. . . .

“The parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four comers of the contract concerning matters covered by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant ... to show mistake or fraud. . . . [This] recognized [exception is], of course, only [an example] of [a situation] where the evidence . . . tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud.” (Citations omitted; internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 780-81, 653 A.2d 122 (1995).

As an initial matter, we must frame the issue before this court. The plaintiff contends that the trial court relied on parol evidence to vary an express term of a contract, specifically, to read the word “lease” out of an otherwise valid contract. The defendants argue that the court relied on the parol evidence to make a preliminary finding that because there was no meeting of the minds between the parties as to the leasing of the subject property, there was no contract at all. We agree with the plaintiff.

Because the defendants conceded in their answer to the complaint that Schwartz had entered into a contract with the plaintiff for professional real estate brokerage services, the validity of the contract was not before the court; only the scope of that contract was at issue. Moreover, the court’s memorandum of decision does not state that there was no agreement. The court found only that there was no agreement as to leasing, implicitly leaving intact that portion of the agreement relating to efforts to sell the property. The legal consequence of the court’s finding, therefore, was to strike that portion of the contract relating to leasing. We analyze the claims raised in this appeal in that light.

The defendants contend that the renewal of the parties’ agreement was solely for the purpose of securing a buyer for the property and was not intended to include any efforts to lease the premises. Schwartz testified in support of that proposition. He stated that upon receiving the agreement, he called Tully and asked if the agreement meant that he was going to sell the building, if, in effect, the agreement was essentially the same as the earlier “right to sell/exchange” agreement. According to Schwartz, Tully responded, “Yes, it’s only for selling the building.” On the basis of that parol evidence, the court found that there was no meeting of the minds that the plaintiff would be entitled to a commission for leasing the premises. Specifically, the court found that in entering into the agreement, the defendants had not intended to retain the services of the plaintiff to lease the subject property, but had intended to retain the plaintiffs services solely for the purpose of selling that property.

That finding, however, directly contradicts the express terms of the contract. The parties’ written agreement provides that a commission is to be paid to the plaintiff upon either the sale or lease of the premises. Paragraph five of that agreement states in relevant part: “Broker earns its commission ... if during the term of this Agreement: (a) a prospective buyer or lessee is ready, willing and able to PURCHASE or EXCHANGE or LEASE the Property at the price shown in paragraph 4 above, or at any other price or terms acceptable to Owner; or (b) any contract for the SALE or TRANSFER or LEASE of the Property or any portion thereof or interest therein is entered into by Owner; or (c) Owner and a prospective buyer or tenant enter into a legally binding contract for the SALE or EXCHANGE or LEASE of the Property or any portion thereof or any interest therein and such contract is breached or rescinded by a party or the parties; or (d) Owner SELLS, LEASES or TRANSFERS the Property or any portion thereof or interest therein . . . .” Paragraph four states: “Owner authorizes Broker to quote a SALE/EXCHANGE price of: $500,000, and a lease rental price of $13.50 gross per square foot, per annum.”

Given the substance of the parol evidence admitted in the present case, it might be supposed that Schwartz was attempting to establish that the lease term contained in the agreement was the result of either mistake or misrepresentation. We refer specifically to Schwartz’s testimony that he asked Tully whether the 1997 contract was the same as the 1995 sale-exchange agreement. Schwartz testified that Tully replied that it was essentially the same and that it contemplated only the sale of the subject property.

As stated previously, parol evidence may be introduced to show fraud in the inducement or a mistake in memorializing the terms of an agreement. Where fraudulent misrepresentation is alleged, parol evidence may be introduced to show that the legal effect of a term was misrepresented and that such misrepresentation was relied on by a party in signing the agreement. See id. The pleadings filed in the present case, however, preclude any such application of the parol evidence rule. The only special defense that the defendants raised was the assertion that the contract failed to comply with the provisions of General Statutes § 20-325a (b). The defendants did not raise any issue with respect to mistake or fraud. Even if we were to conclude that Schwartz’s testimony at trial was aimed at establishing fraud or misrepresentation by the plaintiff respecting the terms of the agreement, we could not conclude that the court was entitled to entertain such testimony. Fraud is an affirmative defense that, to be availed of, must specifically be pleaded. See Practice Book § 10-50; Travelers Ins. Co. v. Namerow, 257 Conn. 812, 825, 778 A.2d 168 (2001); Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995). Because it was not pleaded, the defendants are not entitled to a judgment premised on that defense even if the evidence supports a finding of fraud. See Thomas v. Ferriss, 113 Conn. 539, 545, 155 A. 829 (1931); DeLucia, v. Valente, 83 Conn. 107, 109, 75 A. 150 (1910) (“fact that the court heard evidence upon the question of fraud, considered it, and made a finding in relation to this subject, did not give the appellant the right to rely upon the special defense which had not been pleaded”).

We conclude, therefore, that the court’s reliance on parol evidence to contradict an express term of the parties’ contract was improper. Accordingly, we reverse the court’s judgment that the brokerage agreement did not cover the leasing of the property.

II

The plaintiff also claims that the court improperly found that the plaintiff failed to prove the defendants’ breach of the contract by a preponderance of the evidence. We agree.

“Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 338-39, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002) . “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 11-12, 807 A.2d 991 (2002).

To the extent that the court’s conclusion that the plaintiff failed to prove its breach of contract claim was based on the court’s antecedent finding that the contract did not contemplate retaining the plaintiffs services to lease the subject property, we refer to part I of this opinion, in which we reversed that finding. We note that the court never ruled on whether the evidence supported a breach of a contract to lease the property. Notwithstanding that fact, we will, in the interests of judicial economy, review the evidence and analyze the plaintiffs breach of contract claim in light of the clear and unambiguous language of the contract. See Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 703, 694 A.2d 788 (1997); Emonds v. Lumberman’s Mutual Casualty Co., 49 Conn. App. 374, 377 n.2, 714 A.2d 699 (1998).

The parties’ contract states in relevant part: “Broker earns its commission ... if during the term of this Agreement . . . (b) any contract for the SALE or TRANSFER or LEASE of the Property or any portion thereof or interest therein is entered into by Owner . . . .” In their answer to the complaint, the defendants admitted that during August, 1998, “K.F. and certain tenants entered into ‘Lease Agreements’ whereunder K.F. agreed to lease the Property to said tenants which, in turn, agreed to pay rent for the Property.” The defendants also admitted that they had refused to pay the plaintiff any commissions in connection with that lease agreement.

The defendants argue that it would be inequitable to award a commission to the plaintiff for securing the renewal of the lease by the current occupants because such renewal was not the product of substantial effort by the plaintiff. We need not determine, however, whether negotiating that lease renewal required extensive effort by the plaintiff. All that we may consider is whether such an action was within the scope of the parties’ agreement. We do not unmake bargains unwisely made. Detar v. Coast Venture XXVX, Inc., 74 Conn. App. 319, 323, 811 A.2d 273 (2002) (“ ‘Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law. . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement . . . .’”).

It is true that the renewal of the lease did not require the plaintiff to search for or to solicit a new party to occupy the premises. Because the tenant already was occupying the premises, all that was required was to negotiate the terms of the renewal. The defendants argue implicitly that they would not have contracted with the plaintiff to provide a 5 percent commission for what they characterize as de minimus activity. The record available to us for review confirms that although the plaintiff conducted negotiations with Imagineers for a proposed sale of the property, none of the communications between Imagineers and the plaintiff related to renewing the lease. Indeed, the only communications involving the possibility of leasing, as opposed to selling, the property were carried out between the Imagineers and Schwartz directly. That circumstance alone, however, does not vitiate the defendants’ contractual obligation under the listing agreement. By its terms, the listing agreement was to provide the plaintiff with the exclusive right to offer the property for sale or lease. Under such an agreement, the sale or lease of the property during the contract period, no matter by whom negotiated, obligates the property owner to pay a commission to the listing broker. See Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 132, 425 A.2d 581 (1979) (under exclusive right to sell listing agreement, property owner obligated to pay commission to listing broker regardless of who effects sale). Schwartz concedes that he successfully negotiated a lease of the premises during the time period covered by the parties’ listing agreement. He further concedes that he did not remit any payment to the plaintiff as a result of having leased the subject property.

On the basis of the foregoing, we conclude that the court’s finding that the plaintiff failed to prove its breach of contract claim by a preponderance of the evidence was clearly erroneous.

The judgment is reversed and the case is remanded for further proceedings (1) to consider the defendants’ special defense relating to § 20-325a (b) and (2) for a determination of the appropriate amount of damages.

In this opinion the other judges concurred.

       As framed by the plaintiff, the parol evidence claim challenges: (1) the court’s conclusion that the parties’ contract did not allow the plaintiff to recover a commission in the event that the subject property was leased, and (2) the court’s finding that there was no understanding between the parties that the plaintiff would be entitled to a commission for leasing the premises. Because we conclude that the court’s reliance on parol evidence was improper, we need not reach the issue of whether the finding derived from that evidence, that there was no meeting of the minds between the parties as to leasing of the subject properly, was clearly erroneous.

       K.F. Associates, LLP, a limited liability partnership formed on October 22,1996, is the successor in interest to K.F. Associates, a general partnership formed on January 25, 1983. Schwartz also was the managing partner of the general partnership. Any references to K.F. Associates regarding transactions that occurred prior to October 22,1996, are to the general partnership, rather than to the limited liability partnership.

       That brokerage service was provided pursuant to a contract captioned “Exclusive Right To Lease Agreement.”

       In looking to the circumstances surrounding the making of the agreement, the court relied on Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407-408, 365 A.2d 1086 (1976). Lar-Rob Bus Corp. did not involve a situation in which the trial court relied on parol evidence to contradict the express terms of a written contract. Rather, the court relied on such evidence only to resolve an ambiguity in the contract’s language. That case involved a contract for the provision of school bus services under which the defendant agreed to compensate the plaintiff for extra route mileage at the rate of $1 for each additional mile by which any route exceeded forty miles in length. Id., 405-406. The contract, however, failed to establish whether the “connecting miles” necessarily traveled “between the school to which children are last delivered in the morning and the school where children are first picked up in the morning” should be included in the calculation of route mileage for the purpose of determining extra compensation for routes exceeding forty miles. Id., 406. The court looked to the conduct of the parties in construing the intended meaning of the term “route” within the contract.

       General Statutes § 20-325a (b) provides in relevant part: “No person, licensed under the provisions of this chapter, shall commence or bring any action with respect to any acts done or services rendered after October 1, 1995, as set forth in subsection (a), unless the acts or services were rendered pursuant to a contract or authorization from the person for whom the acts were done or services rendered. To satisfy the requirements of this subsection any contract or authorization shall: (1) Be in writing, (2) contain the names and addresses of the real estate broker performing the services and the name of the person or persons for whom the acts were done or services rendered . . . and (7) be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons, pursuant to a written document executed in the manner provided for conveyances in section 47-5 . . . .”
      We note that the defendants’ answer cited General Statutes § 20-325b, rather than § 20-325a (b). General Statutes § 20-325b provides: “Each written agreement which fixes the compensation to be paid to a real estate broker for the sale, lease or purchase of real property shall contain the following statement in not less than ten point boldface type or in a manner which otherwise stands out significantly from the text immediately preceding any provision of such agreement relating to compensation of the broker:
      “ ‘NOTICE: THE AMOUNT OR RATE OF REAL ESTATE BROKER COMPENSATION IS NOT FIXED BYLAW. IT IS SET BY EACH BROKER INDIVIDUALLY AND MAY BE NEGOTIABLE BETWEEN YOU AND THE BROKER.’ ”
      Nevertheless, the defendants’ brief and testimony make it clear that its defense was based on § 20-325a (b) rather than on § 20-325b.

       Although the defendants pleaded a counterclaim against the plaintiff, alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., the court found that the defendants had failed to brief that claim and deemed it to be abandoned.

       Practice Book § 10-50 provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . fraud . . . must be specially pleaded . . . .”

       We also note that the defendants raised a special defense in their pleadings that the plaintiff had failed to comply with the provisions of General Statutes § 20-325a (b). The court concluded, however, that because the plaintiff had failed to prove its breach of contract claim, the court did not need to consider the defendants’ special defense. In light of our reversal of the court’s conclusion that the plaintiff had failed to prove its breach of contract claim, it will be necessary for the court to consider the defendants’ special defense on remand.


text:
    SANTA FUEL, INC. v. JOHN J. VARGA ET AL.
    (AC 22796)
    Foti, Bishop and West, Js.

      Argued March 18
    officially released June 17, 2003

      Richard McCarthy, for the appellants (defendants).

      Ronald D. Japha, with whom were Abraham M. Hoffman and, on the brief, Abraham I. Gordon and Richard S. Scalo, for the appellee (plaintiff).
   Opinion

WEST, J.

In this action to foreclose a mechanic’s lien filed by the plaintiff, Santa Fuel, Inc., the defendants appeal from the orders of the trial court denying their motions to discharge the hen. On appeal, the defendants claim that the court, Brennan, J., improperly denied their amended motion to discharge the hen, concluding that (1) the plaintiff had rendered services to a building or any of its appurtenances within the meaning of General Statutes § 49-33, (2) the defendants had failed to sustain the burden of proof necessary to discharge the lien, and (3) the owner or someone rightfully acting on his behalf had agreed to pay for the materials and services provided. The defendants also claim that the court, Thim, J., improperly denied their second amended motion to discharge the hen by concluding that (4) the agreement entered into was exempt from the Home Improvement Act, General Statutes § 20-418 et seq., and (5) the transaction in question was not a home sohcitation sale governed by the Home Solicitation Sales Act, General Statutes § 42-134a et seq. We affirm the orders of the trial court.

The following facts, as set forth in the courts’ memoranda of decision, are not in dispute. In January, 1999, Joseph W. Farrace, now deceased, was the owner of real property known as 171 Lloyd Drive (premises) in Fairfield, for whom and where the plaintiff had provided fuel and maintenance services for a number of years. Farrace had two daughters, Jacquelyn Skultety (executrix) and Mary Peddle. For some time prior to Farrace’s death, the executrix conducted her father’s affairs pursuant to a power of attorney.

To facilitate the sale of the premises, the executrix requested that the plaintiff remove an underground fuel storage tank on the premises. On January 6, 1999, an agent of the plaintiff signed an agreement for the services requested and presented it to the executrix. The agreement contained an addendum that stated in part: “Removal and disposal of contaminated fill if encountered shall constitute an extra charge. If after the tank has been removed and it is determined that an environmental problem exists, such as contaminated soil, oil or gasoline is in the grave, the cost to remediate the environmental problem will be considered an extra charge.” The executrix signed the agreement and the addendum on January 15, 1999.

Employees of the plaintiff commenced their services on January 20, 1999. After the tank had been removed, the soil was found to be contaminated because the tank had leaked. On January 20, 1999, Alexander Skultety, the executrix’s husband, signed, “as buyer,” a document in which the plaintiff proposed to furnish the labor and materials necessary to remediate the contamination. The executrix knew that her husband had signed the document and that the plaintiff was to perform the remediation services. The plaintiffs employees completed the requested services on February 1, 1999. The plaintiff claims that cost of the labor and materials provided is $17,968.50.

Farrace died, testate, in February, 1999, shortly after the plaintiff completed its services. Farrace’s will was admitted to probate on March 2, 1999, and named Jacquelyn Skultety as executrix. Farrace had devised the premises, among other things, to the executrix and Peddle. On April 8, 1999, the plaintiff caused to be filed with the Fairfield town clerk a certificate of mechanic’s lien for the cost of labor and materials that had been provided. On April 13, 1999, Jacquelyn Skultety, in her capacity as executrix of Farrace’s estate, was served with a copy of the certificate of mechanic’s lien.

On April 22,. 1999, the executrix, by way of an executor’s deed, conveyed the premises to the defendant John J. Varga. She also signed an indemnification agreement in favor of the defendants, agreeing to defend any action commenced by the plaintiff to foreclose its hen and to pay any judgment rendered in favor of the plaintiff. The plaintiff commenced foreclosure proceedings by means of service on the. defendants on April 11, 2000.

On November 6, 2000, the defendants filed an amended motion to discharge the plaintiff’s hen. See General Statutes § 49-35a (c). The defendants asserted three reasons that the hen should be discharged: (1) the services and materials provided by the plaintiff were not subject to a hen pursuant to § 49-33, (2) the certificate of hen was not served on the owners of the premises and (3) the hen service was not proper because the certificate that was served on the executrix was materially different from the certificate filed with the town clerk. Judge Brennan held a hearing on the amended motion to discharge the hen on February 5, 2001, and, in an oral ruling, denied the motion with respect to reasons one and three. Judge Brennan reserved decision as to whether the certificate of hen had been served on the owner properly. On May 14, 2001, Judge Brennan held a second hearing on the motion to determine whether Farrace or someone rightly acting on his behalf had agreed to have the work performed by the plaintiff. By memorandum of decision dated May 30,2001, Judge Brennan denied the amended motion to discharge as to the issue of service.

Subsequently, the defendants filed a second amended motion to discharge, asserting the three original reasons plus two additional reasons why the lien should be discharged. Following a hearing held on December 3, 2001, Judge Thim ruled on the second amended motion to discharge by memorandum of decision filed February 13, 2002. He did not revisit the three original reasons to discharge, but denied the second amended motion to discharge, concluding that (1) Farrace had authorized the executrix to agree to the tank removal and remediation work, and that the executrix had agreed with the plaintiff for performance of all work, (2) the services performed were not done in violation of the Home Improvement Act and (3) they also were not performed in violation of the Home Solicitation Sales Act. The defendants appealed to this court.

Each of the defendants’ claims requires us to construe various statutes and to apply them to the facts. We therefore set forth the applicable standard of review. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

Statutory interpretation is a question of law and, thus, our review is plenary. Gelinas v. West Hartford, 65 Conn. App. 265, 275, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). “[W]e must determine whether the court’s conclusions are legally and logically correct and are supported by the record.” (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 697, 724 A.2d 1093 (1999).

A mechanic’s hen may be discharged pursuant to motion. General Statutes § 49-35b (a) provides in relevant part: “Upon the hearing held on the . . . motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his hen. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the hen should not be sustained or the amount of the hen claimed is excessive and should be reduced.” See also Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 111, 497 A.2d 70, cert. denied, 197 Conn. 816, 500 A.2d 1336 (1985).

I

We first address the defendants’ claims that the court, Brennan, J., in essence, improperly apphed the statutory law of mechanic’s hens to the facts. To resolve the defendants’ claims, we must construe General Statutes §§ 49-33, 49-34 and 49-35 as they apply to the facts. Our construction of those statutes is informed again by our Supreme Court’s guidance in Courchesne.

“The intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute. Brown’s Appeal, 72 Conn. 148, 150, 44 [A.] 22 [1899]; Stapleberg v. Stapleberg, 77 Conn. 31, 35, 58 [A.] 233 [1904]; Wetherell v. Hollister, 73 Conn. 622, 625, 48 [A.] 826 [1901]. When one construction leads to pubhc mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid. Sutherland on Statutory Construction [Ed. 1891] § 323; Balch v. Chaffee, 73 Conn. 318, 320, 47 [A.] 327 [1900]. A statute should be construed, having in view the nature and reason of the remedy and the object of the statute, in order to give effect to the legislative intent. Newton’s Appeal, 84 Conn. 234, 241, 79 [A.] 742 [1911] . . . .” (Internal quotation marks omitted.) State v. Courchesne, supra, 262 Conn. 575-76.

“The guidelines for interpreting mechanic’s lien legislation are well established. Although the mechanic’s lien statute creates a statutory right in derogation of the common law ... its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.” (Citations omitted; internal quotation marks omitted.) Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn. App. 773, 777, 724 A.2d 541 (1999).

A

The defendants’ first claim is that the court improperly determined that the removal of the tank and the remediation of the contaminated soil were services and materials within the construct of § 49-33. We disagree and conclude that the claim is controlled by our Supreme Court’s decision in Balch v. Chaffee, supra, 73 Conn. 318.

Section 49-33 (a) provides in relevant part: “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 Us appurtenances . . . and the claim is by virtue of an agreement with or by consent of the owner of the land . . . 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 ... is subject to the payment of the claim.” (Emphasis added.) General Statutes § 49-33. “The interpretation of the language of § 49-33 is an issue of law. . . . Questions of law are subject to de novo review.” (Citation omitted; internal quotation marks omitted.) Ceci Bros., Inc. v. Five Twenty-One Corp., supra, 51 Conn. App. 776.

“Prior to the statute’s amendment by the legislature in 1974, our cases construing the language of [§ 49-33] . . . required, as a condition of lienability, that the work done be incorporated in or utilized in the building (or the appurtenance) to be constructed, raised, removed or repaired. . . . Our other cases . . . consistently . . . insisted that mechanic’s hen work be wrought into the liened property in some fashion. Thus the installation of fixtures that do not become part of the realty ... or of electrical work that is not permanently attached to the realty . . . the removal of pipe from one building that is not incorporated into the building that is its replacement . . . and the furnishing of materials or equipment that is not shown to have gone into the construction or repair of a building . . . [were] all unalienable. Balch v. Chaffee, [supra, 73 Conn. 321], did hold lienable as an appurtenance the construction of an artesian weh not physically connected to the house which it was to serve, but Balch v. Chaffee, supra, 320, describes the category of appurtenance as one of detached structures . . . and its holding, thus limited, is therefore consistent with the structural constraints that our other cases . . . uniformly imposed.” (Citations omitted; emphasis added; internal quotation marks omitted.) Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 376-77, 696 A.2d 326 (1997).

In Balch v. Chaffee, supra, 73 Conn. 318, our Supreme Court determined that an artesian well was an appurtenance pursuant to the mechanic’s lien statute of the day. Our Supreme Court’s analysis of the term appurtenance pursuant to the statute and the facts of that case aptly apply to the facts at hand. To cany out the intent of the statute, “it is necessary to give the statute such a construction, if its terms are doubtful, as may serve to make mechanics’ liens of some value. . . . The reference in the statute to the appurtenances of a building was plainly meant to cover what might not otherwise have been deemed to belong to it. It is an apt term to describe detached structures, built as adjuncts to a building, to further its convenient use and occupation. . . . Such was the well in question. The house would hardly have been habitable without it. That it was dug or bored in the soil below the natural surface of the house lot, does not render it any less a work of construction than a tank would be, built above ground and supplied by a force pump. Nor is it material that it was placed in the back yard rather than in the cellar; nor that it was not connected with a kitchen pump. It is also of no consequence that it was built after the house and under a separate and distinct contract. . . . The important inquiries are whether the house could be conveniently used without it, and whether it could be conveniently used except by those occupying the house. As to the latter point there can be no question that its main value lay in what it was worth to the tenants of that particular building.” (Citations omitted.) Id., 320-21.

The tank the plaintiff’s employees removed from the premises had been used to provide heating fuel to the building. Without heat, the building could not be used conveniently, and the tank was of no value to anyone other than the tenants of the building. Furthermore, the tank was wrought into the liened property. It is the public policy of this state to eliminate soil and water pollution. See General Statutes § 22a-l. An entire regulatory system has been developed for the removal of soil contaminated by leaking fuel tanks. See General Statutes § 22a-449k. The court found that the tank was removed so that the premises could be sold. Selling the premises was something of value to the defendants’ predecessors in title, the executrix and Peddle. See footnote 3.

In distinguishing certain services for which a lien may not be filed pursuant to § 49-33, our Supreme Court has defined the word mechanic. “A ‘mechanic’ is normally envisioned as a skilled worker who brings about a result by the use of tools, machines or equipment. See Random House Dictionary of the English Language (Unabridged Ed.).” Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 368, 585 A.2d 1210 (1991). The services performed by the plaintiff here in removing the tank were mechanical in nature, requiring the services of individuals licensed in plumbing and heating.

For those reasons, the court properly determined that the services and materials rendered by the plaintiff were subject to a mechanic’s hen pursuant to § 49-33.

B

The defendants’ second claim is that the court, despite finding that the plaintiff had not served the owners of the property with a copy of the certificate of lien, improperly denied their motion to discharge the hen. Although the court determined that the plaintiff had not served the certificate of hen on the owners of the premises, the record before us does not support that determination. Nonetheless, we agree with the court that the defendants failed to sustain their burden of proof to warrant the discharge of the lien.

At the hearing on the amended motion to discharge the lien and on appeal, the defendants have argued that the plaintiff failed to comply with §§ 49-34 and 49-35, because it had not served the certificate of lien on each of the owners of the premises, i.e., the executrix and Peddle. General Statutes § 49-34 provides in relevant part: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials . . . (2) . . . 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 providedfor the service of the notice in section 49-35." (Emphasis added.) General Statutes § 49-35 (a) provides in relevant part: “No person ... is entitled to claim any such mechanic’s lien, unless . . . such person gives written notice to the owner of the building, lot or plot of land .... The notice shall be served upon the owner .... When there are two or more owners . . . the notice shall be so served on each owner . . . .” (Emphasis added.) The defendants also rely on Papa v. Greenwich Green, Inc., 177 Conn. 295, 300-303, 416 A.2d 1196 (1979) (state, federal constitutional due process require that certificate of mechanic’s lien must be served on all owners).

The court found that the plaintiff had failed to serve the certificate of lien on the owners of the premises whom it determined were the executrix and Peddle. The court, however, denied the motion to discharge on the ground that the defendants had offered no evidence that the executrix had filed a fiduciary’s certificate in the land records as required by General Statutes § 45a-322 (a) or that the Probate Court had published a notice to creditors pursuant to General Statutes § 45a-354. The court concluded that the defendants had failed to meet their burden that the hen should be discharged.

On appeal, the defendants note that the plaintiff served a copy of the hen certificate on the executrix only in her fiduciary capacity. They argue that the executrix in her fiduciary capacity did not own the premises; see Ryder v. Lyon, 85 Conn. 245, 252, 82 A. 573 (1912); and point out that “title to real estate vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate.” Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992). The defendants conclude that the executrix and Peddle became the owners of the premises on the date Farrace died. Neither the facts nor the law support the defendants’ conclusion.

The evidence in the record demonstrates that in January, 1999, at the time the plaintiff was providing its services, the premises were listed for sale. Farrace died in February, 1999. His will was admitted to probate on March 2, 1999. By executor’s deed, the executrix conveyed the premises to Varga on April 22, 1999. We, however, do not know when the contract was entered into for the sale of the premises. Neither Judge Brennan nor Judge Thim made a finding of that fact, and pursuant to our plenary review, we found no evidence as to when the contract for the sale of the premises was entered into and by whom. The contract of sale may have been entered into before Farrace died, it may have been entered into before his will was admitted to probate or thereafter. If the contract of sale was entered into before Farrace died or before his will was admitted to probate, the executrix and Peddle never became the owners of the premises. There also is no evidence of when, or whether, a probate certificate of devise was recorded in the land records. The defendants, therefore, have failed to prove by clear and convincing evidence that the lien is invalid because it was not served on the owners of the premises as required by § 49-35b.

“It is fundamental jurisprudence that title to real estate vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); O’Connor v. Chiascione, 130 Conn. 304, 306-308, 33 A.2d 336 (1943). The recording of a probate certificate of devise or descent is necessary only to perfect marketable title. That certificate furnishes evidence that the heir’s or devisee’s title is no longer in danger of being cut off by a probate sale to pay debts of the estate and also because it furnishes a record of who received the title.” Cardillo v. Cardillo, supra, 27 Conn. App. 212.

An heir is “[a] person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property, [especially] real property.” Black’s Law Dictionary (7th Ed. 1999). A devisee is “[a] recipient of property ([usually] real property) by will.” Id.; see also Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737 n.17, 675 A.2d 430 (1996). Farrace died testate and devised the premises to the executrix and Peddle, who, therefore, were devisees and did not become owners of the premises, if at all, until Farrace’s will was admitted to probate on March 2, 1999.

Furthermore, “[t]he estate of an owner of real estate under contract of sale, under the doctrine of equitable conversion, becomes in equity an estate in personalty and in case of his death before his contract is performed, or fully performed, the contract and the proceeds thereof are personal property or assets in the hands of his administrator or personal representative to be administered as the rest of his personal assets are administered.” (Internal quotation marks omitted.) Pigeon v. Hatheway, 156 Conn. 175, 177, 239 A.2d 523 (1968). We do not know when Varga entered into the contract to purchase the premises. If the contract was entered into before Farrace died, the executrix and Peddle never became the owners of the premises.

Because the defendants failed to sustain their burden of establishing by clear and convincing evidence that the certificate was not served on the owner of the premises and therefore that the hen was not valid, the court properly denied their amended motion to discharge the mechanic’s lien.

C

The last of the defendants’ claims as to Judge Brennan’s rulings is that he improperly found that Farrace or someone rightfully acting on his behalf had agreed to pay for the materials and services provided. The court’s finding is supported by the evidence in the record.

“It is a general rule of law that the principal in a principal/agent relationship is only bound by, and liable for, the acts which his agent does with or within the actual or apparent authority from the principal, and within the scope of the agent’s employment .... The nature and extent of an agent’s authority is a question of fact for the trier.” (Citations omitted; internal quotation marks omitted.) Newtown Associates v. Northeast Structures, Inc., 15 Conn. App. 633, 637-38, 546 A.2d 310 (1988).

“The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. The trial court’s findings axe binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 11-12, 807 A.2d 991 (2002).

“Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. . . . Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent. . . . Furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertences of the principal.” (Citations omitted; internal quotation marks omitted.) Newtown Associates v. Northeast Structures, Inc., supra, 15 Conn. App. 638-39.

As previously stated, after the plaintiffs employees had removed the tank from the ground, they discovered that the tank had leaked fuel oil into the surrounding soil. On January 20, 1999, Alexander Skultety met with an agent of the plaintiff, and signed a time and materials agreement for the remediation of the contaminated soil. The defendants claim that Alexander Skultety was without authority to enter into the agreement on behalf of the owner of the premises. Judge Brennan found that Alexander Skultety went to the premises to meet a representative of the plaintiff at the behest of the executrix. He also found that that evening, Alexander Skultety had a conversation with the executrix, who ratified his acts.

Judge Thim found that on January 15,1999, the executrix signed an addendum to the agreement to remove the tank. The addendum stated: “Removal and disposal of contaminated fill if encountered shall constitute an extra charge. If after the tank has been removed and it is determined that an environmental problem exists, such as contaminated soil, oil or gasoline is in the grave, the cost to remediate the environmental problem will be considered an extra charge.” The tank was removed and the soil was found to be contaminated. Alexander Skultety signed as “buyer” a document, wherein the plaintiff proposed to furnish the materials and labor, at prices set forth in the document, that were made necessary due to the tank’s having leaked. Judge Thim also found that the executrix was aware that the remediation work was being done.

On the basis of our review of the transcript of the hearings, we conclude that the findings of Judge Brennan and Judge Thim are not clearly erroneous. At the time the executrix, who was then acting under a power of attorney for Farrace, signed the agreement for the removal of the tank, she signed an addendum concerning contaminated soil. At the time that the plaintiffs employees had determined that the soil was contaminated, the executrix made a decision, despite her fiduciary responsibilities, not to meet with the representative of the plaintiff to discuss the remediation, but asked her husband, Alexander Skultety, to go in her stead. She knew that the contaminated soil had to be removed to sell the premises. She discussed the plaintiffs time and materials agreement with her husband, and had concerns about the cost of the remediation, which could not be determined until the process was undertaken. The executrix never instructed the plaintiffs agents that she did not want the remediation services and materials to be provided. She permitted the remediation to be completed and never objected until she received the plaintiffs statement. The court, therefore, properly denied the motion to discharge.

II

We now turn to the defendants’ claims that in denying their second amended motion to discharge the mechanic’s lien, the court, Thim, J., improperly construed (1) the Home Improvement Act, General Statutes § 20-418 et seq., and (2) the Home Solicitation Sales Act, General Statutes § 42-134a et seq., with regard to home solicitation sales, to the facts in issue. We disagree with the defendants’ claims.

Again, because we are called on to apply the language of statutes to the facts, our review is plenary. Gelinas v. West Hartford, supra, 65 Conn. App. 275.

A

The defendants claim that the court improperly determined that the agreement between the plaintiff and the executrix was exempt from the Home Improvement Act pursuant to § 20-428 (4) of that legislation. We do not agree.

In their second amended motion to discharge the mechanic’s lien, the defendants claimed that the agreement between the plaintiff and the executrix was not enforceable under the Home Improvement Act. The plaintiff countered that it was exempt from the legislation because some of its employees hold professional licenses. The court found that an owner, a manager and persons employed by the plaintiff held current and unlimited contractor licenses for heating, cooling, piping and plumbing work. Two of the license numbers are set forth on the first page of the agreement signed by the executrix on January 15,1999. The licenses were issued pursuant to chapter 393 of the General Statutes, and the services performed on the premises were of the kind that holders of such licenses are authorized to perform. Several of the plaintiffs employees who provided services possessed limited heating and plumbing licenses. The court concluded that a licensed contractor was responsible for the services provided on the premises and, therefore, the Home Improvement Act did not apply to the agreement.

General Statutes § 20-428 provides in relevant part: “This chapter shall not apply to any of the following persons or organizations ... (4) any person holding a current professional or occupational license issued pursuant to the general statutes . . . provided such person engages only in that work for which such person is licensed or registered.” Under the Home Improvement Act the word person “means an individual, partnership, limited liability company or corporation.” General Statutes § 20-419 (7).

On appeal, the defendants claim that there was no evidence that any licensed contractor performed any of the services on the premises. Our plenary review of the transcript demonstrates that the court’s findings were not clearly erroneous. The defendants also take issue with the court’s conclusion that a licensed contractor who was responsible for the services provided satisfies the exemption. This court previously has concluded that “General Statutes § 20-337, which is also a component of title 20 dealing with the licensing of plumbers, [solar, heating, piping and cooling] makes it clear that the ownership of a business that provides the services of licensed persons need not be in the control of a licensed person. ... If [a company’s] employees are licensed plumbers, [the company] is considered licensed also for purposes of § 20-428 (4).

“The purpose of the [Home Improvement Act] is to ensure that home improvements are performed by qualified people. That purpose will not be subverted by allowing businesses with a corporate structure that hire licensed plumbers for the performance of their plumbing work to be exempt from the necessity of a written contract.” Avon Plumbing & Heating Co. v. Fey, 40 Conn. App. 351, 358, 670 A.2d 1318 (1996); see also O’Donnell v. Rindfleisch, 13 Conn. App. 194, 202-204, 535 A.2d 824 (licensed contractor responsible for services of unlicensed employees), cert. denied, 207 Conn. 805, 540 A.2d 373 (1988).

For the foregoing reasons, the court properly concluded that the plaintiff was exempt from the dictates of the Home Improvement Act.

B

The last of the defendants’ claims is that the court improperly determined that the transaction in question was exempt from the Home Solicitation Sales Act, § 42-134a et seq. The defendants’ claim lacks merit.

In their second amended motion to discharge the mechanic’s lien, the defendants asserted that the documents relied on by the plaintiff were unenforceable because they violated the Home Solicitation Sales Act, in particular General Statutes § 42-135a. The court determined that the agreement between the plaintiff and the executrix was excluded from the terms of that legislation pursuant to the exclusions set forth therein.

General Statutes § 42-134a (a) provides in relevant part: “ ‘Home solicitation sale’ means a sale, lease, or rental of consumer goods or services, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller. The term ‘home solicitation sale’ does not include a transaction ... (4) in which the buyer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer’s personal property. If in the course of such a visit, the seller sells the buyer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services shall not come within this exclusion . . . .”

On the basis of our plenary review of the record, we conclude that the evidence supports the court’s findings and conclusion. The executrix requested that the plaintiff install a new oil tank in the garage and remove the old tank from the ground to facilitate the sale of the premises. The addendum to the agreement signed on January 15, 1999, contemplates the need to remediate any contaminated soil that might be found after the tank was removed from the ground. The labor and materials therefore needed to remove the contaminated soil were within the scope of the original request of the executrix.

For all of the foregoing reasons, we conclude that the defendants’ amended motion and second amended motion to discharge the mechanic’s lien on the premises were denied properly.

The orders denying the defendants’ motions to discharge the plaintiffs mechanic’s lien are affirmed.

In this opinion the other judges concurred.

       The defendants are John J. Varga, owner of the subject premises, and American Home Mortgage, holder of a mortgage deed on the premises. Pursuant to an indemnification agreement, Jacquelyn Skultety, executrix of the estate of Joseph W. Farrace, is defending the action.

       General Statutes § 49-35c (a) provides: “Any order entered as provided in subsection (b) of section 49-35b shall be deemed a final judgment for the purpose of appeal.”

       “The design of the statute was to give to one who, by furnishing services or materials, under a contract with the owner of land, had added to its value by constructing a building upon it, or any appurtenances to a building, a substantial security for his proper remuneration. The lien which may be created is therefore made to embrace ‘such land, building and appurtenances.’ " Balch v. Chaffee, supra, 73 Conn. 320.

       “Although we disagree with the trial court’s reasoning, we affirm the court’s judgment ‘because it reached the right result, even if it did so for the wrong reason.’ Kalas v. Cook, 70 Conn. App. 477, 485, 800 A.2d 553 (2002); see also Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998).” Torringford Farms Assn., Inc. v. Torrington, 75 Conn. App. 570, 571 n.2, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003).

       In their appellate brief, the defendants attribute that finding to Judge Brennan. To rule on the fourth and fifth reasons to discharge the lien, Judge Thim also had to make that factual determination. Both Judge Brennan and Judge Thim found that Alexander Skultety rightfully had entered into the contract for remedial work on behalf of the owner of the premises.

       The transcript discloses that the executrix testified in relevant part as follows on May 14, 2001, before Judge Brennan:
      “[Plaintiffs Counsel]: Okay. Can you tell us how you came to sign what is in evidence as exhibit one? How did this document and the services on this, how did those come to be?
      “[The Witness]: We needed to have the tank removed and a new one put in the garage at my parents’ house at 71 Lloyd Drive.
      “[Plaintiffs Counsel]: Okay. When you say ‘we’ needed to do this, who is we?
      “[The Witness]: I was power of attorney for my father, so I asked, since we needed . . . because of the sale of the house, they wanted the tank removed and the installation of a new one in the garage.
      “[Plaintiffs Counsel]: All right. And what sale of the house was in the works at that time? Was it listed already?
      “[The Witness]: It was listed.
      * ** *
      “[Plaintiffs Counsel]: Sure. Mr. Skultety brought this document to you, you saw it at some point after he signed it. Is that correct?
      “[The Witness]: Yes.
      “[Plaintiffs Counsel]: Did you voice any objection to him that he shouldn’t have signed the document?
      “[The Witness]: I voiced a concern about the amount, the price list, I’m going to call it a price list.
      “[Plaintiffs Counsel]: But you had no objection to him having signed the work to get it done so you could sell the property.
      “[The Witness]: I didn’t know that he was going to be signing anything.
      “[Plaintiffs Counsel]: All right. But once he signed it, did you object to him having signed it?
      “[The Witness]: I don’t think we had that discussion.
      “[Plaintiffs Counsel]: All right.
      “The Court: You didn’t make any calls to [the plaintiff] to tell [it] not to go ahead with the remediation, did you?
      “[The Witness]: No. I didn’t.
      “[Plaintiffs Counsel]: Your quarrel with ... if any, was more with the price as to what it would cost and the fact that the work had to be done. Is that a fair statement?
      “[The Witness]: Yes.
      “[Plaintiffs Counsel]: There is no question in your mind, as you knew it, that an oil tank had leaked, is that correct?
      “[The Witness]: Right.
      “[Plaintiffs Counsel]: And that it had to be remediated or the buyers of the property wouldn’t buy the house. Is that correct?
      “[The Witness]: That would be correct.
      “[Plaintiffs Counsel]: And how is it that Mr. Skultety came to sign this document and, or, obtain the proposal? Do you know?
      “[The Witness]: I was unable to take the day off from school because I had taken several off because of my father’s health. And so I asked my husband, Alex, to be there; he had a key to the house in case they needed to get into the house for any reason.
      “[Plaintiffs Counsel]: Is it your claim, Mrs. Skultety, that the estate of Joseph Farrace does not owe [the plaintiff] or its subsidiaries for this debt? Yes or no?
      “[The Witness]: I do believe that they performed the service. I don’t think that is what we are disputing.
      “[Plaintiffs Counsel]: All right, well, why don’t you tell me what you think it is you are disputing.
      “[The Witness]: Our concern is the amount of the service.
      * * *
      “The Court: No, let me put it this way. Are you claiming that the reason that this debt is not payable is because Mr. Skultety signed the papers and you didn’t?
      “[The Witness]: Well, I believe I’m the power of attorney, so ... .
      “The Court: Yeah. Okay. And you didn’t.
      “[The Witness]: No. I didn’t.

        “The Court: And you knew about it the same day that he signed the papers, right?
      “[The Witness]: I believe he said he signed something that night. I don’t think we discussed that as much as we discussed the price list. I’m going to call it the price lists.
      “The Court: That he signed. That is what he signed, was the price list What is sitting in front of you marked exhibit two. Right?
      “[The Witness]: Yes.
      “The Court: And you discussed that, and you expressed concerns about it.
      “[The Witness]: About the price list, yes.
      “The Court: Did you call [the plaintiff] and tell [it], ‘[D]o not go forward with this work’?
      “[The Witness]: No.
      “The Court: Why?
      “[The Witness]: I don’t recall. I knew the work had to be done. There wasn’t a final number. There was aprice list, but there was not afinal number.
      “The Court: And did you call [the plaintiff] and tell [it that it] had to give you a final number before [it] could go forward with the work?
      “[The Witness]: No. I didn’t.
      “The Court: And why is it you say this bill is not payable?
      “[The Witness]: Well, I think Ijust stated that, Your Honor, I was concerned about the amount. The amount seemed over and above ... I believe something that my husband discussed with [the plaintiffs representative] when he asked him, ‘[W]ell, can you give me an idea?’ I think my husband would be able to state those numbers more clearly. But are we talking about three, are we talking about five, are we talking about nine? . . . There was no definite amount.”
      The plaintiff presented evidence that because the extent of the soil contamination could not be ascertained at the time the agreement was entered into, it had to proceed on a time and materials basis.