CECI BROTHERS, INC. v. FIVE TWENTY-ONE CORPORATION ET AL.

The defendant Five Twenty-One Corporation1
appeals from the judgment of the trial court
awarding damages in the amount of $117,214 for breach
of contract for maintenance and gardening at a home
owned by the defendant. The defendant makes several
claims on appeal, specifically that (1) the discharge of
the plaintiff's mechanic's lien, the subject of the only
count of the plaintiff's original complaint,2 was the
equivalent of the granting of a motion to dismiss, therefore
depriving the court of subject matter jurisdiction
over a later amendment to the complaint, (2) the court
improperly imposed interest as provided in General
Statutes §§ 37-3a and 52-192a, and (3) the plaintiff's
April 15, 1996 offer of judgment, made before the
amendment to the complaint, at a time when the complaint
solely sought to foreclose on a mechanic's lien,
was not valid. We affirm the judgment of the trial court.

The following facts and procedural history are relevant
to the defendant's appeal. The return date of the
plaintiff's complaint was February 13, 1996. On or about
March 15, 1995, the plaintiff and the defendant entered
into a written agreement pursuant to which the plaintiff
would provide landscaping services for a house in
Greenwich owned by the defendant. The plaintiff and
the defendant entered into another subsequent
agreement on diverse days between May and July, 1995,
for the construction of a visual obstruction, a berm,
between the house and adjacent property, and the planting
of trees as a visual obstruction. At some point, while
performing work pursuant to the second agreement, a
rock wall surrounding the defendant's property was
knocked down to allow access to the property and was
later rebuilt by the plaintiff. Both the first agreement
and the second were the subject of the defendant's
counterclaim, which alleged various breaches of contract,
numerous torts and negligence of the plaintiff in
rebuilding the wall.3

After a dispute about the work performed under the
landscaping contract, the plaintiff stopped work at the
request of the defendant and demanded payment. When
the defendant did not pay for the work the plaintiff had
done, the plaintiff filed a one count complaint dated
January 26, 1996, seeking foreclosure of its mechanic's
lien,4 and filed an offer of judgment on April 15, 1996.
On June 24, 1996, the plaintiffs requested leave to amend
their complaint to add counts of breach of contract and
quantum meruit. The defendant objected to the request
to amend on June 28, 1996. The defendant applied for
a discharge of the mechanic's lien, which the plaintiff
sought to foreclose in the first count of the amended
complaint, on July 23, 1996. The court denied the application
to discharge on July 16, 1997. That ruling of the
trial court was reversed by this court; Ceci Bros., Inc.
v. Five Twenty-One Corp., 51 Conn. App. 773, 774–75,
724 A.2d 541 (1999); and the case was remanded with
direction to the trial court to grant the application to
discharge the mechanic's lien. Id., 782.

On July 9, 1999, the defendant filed a motion to dismiss,
claiming a lack of subject matter jurisdiction
because the July 29, 1996 granting of the request to
amend the plaintiff's complaint to add counts was subsequent
to the filing of the defendant's application for
a discharge of the mechanic's lien on July 23, 1996. The
motion to dismiss was denied.

An attorney trial referee (referee) ruled on the
remaining counts in the amended complaint, issuing his
report on April 11, 2002. He determined that the plaintiff
had proved damages in the amount of $44,248 and that
the plaintiff was entitled to interest in accordance with
§ 37-3a.5 The referee also found that the plaintiff was
negligent in its reconstruction of the wall on the premises
of the defendant's house and therefore found in
favor of the defendant on the counterclaim in the
amount of $8700. In confirming the referee's findings,
the court awarded interest for the plaintiff pursuant to
§ 37-3a, starting from the June 24, 1996 date of filing
of the amended complaint, in the amount of $22,389.
The court also ordered offer of judgment interest pursuant
to § 52-192a in the amount of $50,577, with interest,
again, running from the date of the filing of the amended
complaint, for a total award for the plaintiff of $117,214.

I

The defendant claims that the discharge of the
mechanic's lien functioned as if the court had granted
a motion to dismiss and that the discharge of the
mechanic's lien deprived the court of subject matter
jurisdiction over the remaining counts of the complaint.
The defendant does not claim that the plaintiff originally
could not have asserted several alternate causes of
action based on the same facts as were the basis for
the plaintiff's attempt to obtain a mechanic's lien.
Rather, the defendant contends that because the
request to amend the complaint to add claims for breach
of contract and quantum meruit was granted on July
29, 1996, after the defendant had filed an application
on July 23, 1996, to discharge the mechanic's lien, the
amendment became void when the lien eventually was
discharged on June 15, 1999.

‘‘A determination regarding a trial court's subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record.'' (Internal quotation marks omitted.)
Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).
While noting this standard of review, we are also aware
of judicial policy disfavoring the termination of proceedings
without deciding the merits of the dispute. A
court should reach the merits of a case when it is possible
within the guidelines of available procedural rules.
Haigh v. Haigh, 50 Conn. App. 456, 463, 717 A.2d
837 (1998).

The plaintiff's original complaint sought, as relief,
foreclosure of a mechanic's lien, attorney's fees, interest,
costs, and such other legal and equitable relief as
the court might deem just and proper. The construction
of a pleading, here, the original complaint, to determine
its scope, is for a court, which is not required to accept
the construction proffered by a party. Home Oil Co. v.
Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985). We
do not accept the defendant's characterization of the
complaint as limited to the foreclosure of the lien. Given
the broad manner in which the original prayer for relief
was framed, we conclude that the defendant, therefore,
had notice that the plaintiff also might assert causes of
action arising out of the same facts, in addition to the
foreclosure of the mechanic's lien.

The plaintiff filed its request to amend on June 24,
1996, which was objected to by the defendant on June
28, 1996. The defendant did not assert a lack of subject
matter jurisdiction in connection with the objection.
The court granted the request to amend on July 29,
1996, but the amended complaint was date stamped
June 24, 1996. The defendant's application to discharge
the mechanic's lien was filed on July 23, 1996. There-
fore, although the mechanic's lien, which the plaintiff
sought to foreclose in the original complaint and in
the first count of the amended complaint, was later
discharged in February, 1999, by the decision of the
Appellate Court and by the trial court on remand on
March 10, 1999, as directed by the Appellate Court, the
remaining counts by then had long been a part of an
existing, operative complaint. After the Appellate Court
rendered judgment, there were two operative counts
of the complaint remaining to give the trial court subject
matter jurisdiction.

We conclude that the court had subject matter jurisdiction
to consider the counts of the amended complaint
after the discharge of the mechanic's lien.

II

The defendant claims that the court and the referee
improperly found the plaintiff to be entitled to § 37-3a
interest on the basis of the $44,248 that was awarded
to the plaintiff6 and instead should have subtracted the
$8700 that was awarded to the defendant before calculating
the amount of interest due the plaintiff.7 The
defendant also claims that the court should have stayed
the imposition of any interest during the pendency of
its successful appeal.

‘‘Prejudgment interest pursuant to § 37-3a has been
applied to breach of contract claims for liquidated damages,
namely, where a party claims that a specified sum
under the terms of a contract, or a sum to be determined
by the terms of the contract, owed to that party has
been detained by another party.'' Foley v. Huntington
Co., 42 Conn. App. 712, 740, 682 A.2d 1026, cert. denied,
239 Conn. 931, 683 A.2d 397 (1996). ‘‘[T]he determination
of whether interest pursuant to § 37-3a should be
awarded is a question for the trier of fact.'' Id., 738.

‘‘It is clear that Connecticut case law establishes that
prejudgment interest is to be awarded if, in the discretion
of the trier of fact, equitable considerations deem
that it is warranted.'' Paulus v. LaSala, 56 Conn. App.
139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn.
928, 746 A.2d 789 (2000). Prejudgment interest in accordance
with § 37-3a normally is awarded for money
wrongfully withheld, and provides for interest on
money that is detained after it becomes due and payable.
Fitzpatrick v. Scalzi, 72 Conn. App. 779, 788, 806
A.2d 593 (2002).

The defendant's counterclaim, although related to
performance of a contract, essentially was a claim in
negligence, and prejudgment interest has been denied
in similar circumstances. See Tang v. Bou-Fakhreddine,
75 Conn. App. 334, 346, 815 A.2d 1276 (2003).
Prejudgment interest pursuant to § 37-3a is not warranted
in cases for breach of contract in which the
damages ‘‘are similar to damages in a personal injury
claim in negligence where a party is seeking to be made
whole for the loss caused by another.'' Foley v. Huntington
Co., supra, 42 Conn. App. 742. The defendant's
counterclaim sounded more in negligence than in
breach of contract, as the defendant was seeking to be
made whole by the award of damages to repair faults in
a rock wall that negligently was caused by the plaintiffs.
To award § 37-3a interest, two components must be
present. First, the claim to which the prejudgment interest
attaches must be a claim for a liquidated sum of
money wrongfully withheld and, second, the trier of fact
must find, in its discretion, that equitable considerations
warrant the payment of interest. See Fitzpatrick v.
Scalzi, supra, 72 Conn. App. 788.

A

The defendant first claims that interest in accordance
with § 37-3a should have been applied to the ‘‘net'' judgment.
The defendant contends that § 37-3a interest
should be applied only after subtracting the $8700 that
was awarded to the defendant from the $44,248 that
was awarded to the plaintiff. The defendant's claim
is essentially that the court abused its discretion by
deciding that § 37-3a interest was not suitable for their
counterclaim for negligence. As we have stated, if the
defendant's counterclaim, as a matter of law, was not
one that would allow § 37-3a interest, we do not reach
any question of abuse of discretion.

A counterclaim is an independent action. Practice
Book §§ 10-10, 10-54, 10-55; Union Carbide Corp. v.
Aetna Casualty & Surety Co., 212 Conn. 311, 318, 562
A.2d 15 (1989); Home Oil Co. v. Todd, supra, 195 Conn.
341. The defendant cites Grodzicki v. Grodzicki, 154
Conn. 456, 458, 226 A.2d 656 (1967), for the proposition
that one award must be set off against another. Grodzicki
did not discuss the calculation of any interest,
however. Neither party has cited relevant precedent as
to whether interest should be awarded on gross or net
judgment awards in situations in which the claims arose
out of the same contract or concerned mutual debts of
opposing parties, or where they did not.

In this case, the defendant's counterclaim did not
sound in contract, but was based on negligence, for
which no § 37-3a interest can be due. To set off one
claim against the other before calculating interest
would, in effect, award § 37-3a interest to the defendant
when the defendant had not been awarded such interest
and was not entitled to such interest.8
We conclude that the court, correctly, did not first
subtract the defendant's award from the plaintiff's
award before calculating the § 37-3a interest due to
the plaintiff.

B

The defendant next claims that interest in accordance
with §§ 37-3a and 52-192a should have been stayed dur-
ing the period of the defendant's successful appeal.
We have discussed the analytical framework behind
granting § 37-3a interest. We now discuss the same
bases for offer of judgment interest awarded pursuant
to § 52-192a.9

Offer of judgment interest is a tool for the court to
use to promote settlements and to ease the burden of
an overload of cases on the court. Kusha v. Respondowski,
3 Conn. App. 570, 574, 490 A.2d 1014 (1985). Its
purpose is also to avoid the waste of judicial resources.
See id. ‘‘The statute is admittedly punitive in nature.
. . . It is the punitive aspect of the statute that effectuates
the underlying purpose of the statute and provides
the impetus to settle cases.'' (Internal quotation marks
omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors,
Inc., 239 Conn. 708, 752, 687 A.2d 506 (1997).

In Blakeslee Arpaia Chapman, Inc., offer of judgment
interest continued to run pending an informal stay
while the merits of the case were tried in federal court.
Id., 752–53. As in Blakeslee Arpaia Chapman, Inc., had
the defendant here chosen to accept the offer of judgment,
it would have been shielded from any further
liability, including the accrual of interest during its successful
appeal to discharge a mechanic's lien. See
Lutynski v. B.B. & J. Trucking, Inc., 31 Conn. App.
806, 815, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642
A.2d 1 (1994). To allow for stays of the accrual of § 52-
192a interest, however, due to delays that are not the
fault of the parties would defeat the stated purpose of
the statute. The delay here was not the ‘‘fault'' of the
defendant. Nevertheless, the defendant did choose a
tactical path to determine a procedural question, not
an uncommon, unethical or illegal path, but nonetheless
a path that resulted in seven years of litigation over
unpaid landscaping fees. General Statutes § 52-192a
provides for mandatory imposition of interest at a set
rate, unlike § 37-3a; see Suarez-Negrete v. Trotta, 47
Conn. App. 517, 522, 705 A.2d 215 (1998); and affords
no allowance for the discretion of the court. The court
was correct, therefore, in not staying § 52-192a interest
while the defendant's appeal of the validity of the plaintiff's
mechanic's lien was pending.

As discussed, the purpose of § 37-3a is to make a
plaintiff whole in certain cases in which the defendant
has wrongfully deprived the plaintiff of the use of a
liquidated sum of money. That purpose need not be
thwarted because the defendant chose to attack the
foreclosure of a mechanic's lien. The time spent
awaiting the outcome of the appeal, however, could
have been considered by the trier of fact in deciding
whether to award interest at all or in deciding the date
from which interest should begin to run. The determination
of a proper commencement date for prejudgment
interest is purely a determination reserved for the trier
of fact. Paulus v. LaSala, supra, 56 Conn. App. 149. In
this case, the court did not exclude the time that elapsed
while the case was on appeal. There was no abuse of
discretion committed by failing to do so.

III

The defendant's final claims relate to the offer of
judgment statute. The defendant seeks to avoid offer
of judgment interest because it claims that offers of
judgment do not apply to actions for the foreclosure
of mechanic's liens. The defendant also claims that the
plaintiff's offer of judgment was void because the defendant
could not accept or reject the offer of judgment
within thirty days as required by § 52-192a.10 Both parties
agree that the complaint was amended to include
a breach of contract claim after the defendant's thirty
day statutory window to accept the offer of judgment
had passed. The offer of judgment in this case was filed
April 15, 1996, the request to amend was dated June
20, 1996, and the granting of the request to amend was
filed on July 29, 1996. Finally, the defendant claims that
the offer of judgment should not apply to the amended
complaint at all. We disagree.
Neither the parties nor this court is aware of any
Appellate or Supreme Court case that resolves whether
offers of judgment apply to mechanic's liens. An offer
of judgment, however, covers all claims, known and
unknown, certain and uncertain, relating to a transaction
between a plaintiff and a defendant. Blakeslee
Arpaia Chapman, Inc. v. EI Constructors, Inc., supra,
239 Conn. 750.

The purpose of the mechanic's lien was to recover
money. See Murphy v. Marmon Group, Inc., 562 F.
Sup. 856, 858 (D. Conn. 1983) (offer of judgment can
apply to declaratory judgment action, purpose of which
was to recover money). The plaintiff could not have
known at the time it sought foreclosure of its mechanic's
lien that the Appellate Court would determine that
a mechanic's lien could not be used in cases involving
landscaping services. Before this court decided the
question, however, the plaintiff successfully had
amended its complaint to allege a breach of contract
to obtain payment for the same services as were the
basis for its mechanic's lien. Thus, we need not decide
whether, if the complaint had remained unamended and
solely sought the foreclosure of a mechanic's lien, the
plaintiff's offer of judgment would have applied.
The defendant next claims that because the offer
of judgment was filed before the amended complaint,
which contained the count for which damages finally
were awarded, the offer of judgment should have been
refiled to make it operative.

It is true that parties are allowed to refile an offer of
judgment for the same amount as the first offer as many
times as they deem necessary prior to the commencement
of trial. Shawhan v. Langley, 249 Conn. 339, 345–
46, 732 A.2d 170 (1999).11 Although a refiling of an offer
of judgment would have been possible here, the plaintiff
was under no requirement to refile. See Lutynski v.
B.B. & J. Trucking, Inc., supra, 31 Conn. App. 815.
As previously stated, an offer of judgment applies to
all claims, known and unknown, certain and uncertain.
Blakeslee Arpaia Chapman, Inc. v. EI Constructors,
Inc., supra, 239 Conn. 750. In Lutynski and in Blakeslee
Arpaia Chapman, Inc., the courts found that amended
complaints did not invalidate prior offers of judgment.
See id., 750–51. The defendant claims that those cases
can be distinguished in that the plaintiffs in Blakeslee
Arpaia Chapman, Inc., and in Lutynski did not completely
change the nature of their claims, but rather
amended the claims to reflect new and expanded
damages.

In Lutynski, the plaintiff had been in a car accident.
Lutynski v. B.B. & J. Trucking, Inc., supra, 31 Conn.
App. 809. The injuries that resulted worsened after the
initial complaint was filed, after an offer of judgment
was filed and after the thirty day acceptance window
had passed. Id. The plaintiff amended the complaint to
include the new injuries after the offer of judgment
acceptance period had passed. Id., 809–10. On appeal,
this court held that the offer of judgment that had been
made was still valid, regardless of the plaintiff's subsequently
having filed amended complaints, and allowed
offer of judgment interest to accrue. Id., 814–16. We
see a distinction without a difference in the present
case. The plaintiff attempted to recover wrongfully
withheld money by employing a statutory lien that
turned out to be the improper procedural device. The
plaintiff already had amended its complaint to add other
causes of action involving the same facts by the time
the Appellate Court rendered its judgment ordering that
the application to discharge the mechanic's lien be
granted on remand. See Ceci Bros., Inc. v. Five Twenty-
One Corp., supra, 51 Conn. App. 782.

A premature filing of a statutorily permissible request
can become viable when the basis for the filing comes
to fruition. Home Oil v. Todd, supra, 195 Conn. 343. In
Home Oil, the defendant filed a claim for a jury trial
at a time when the issue of fact had not yet been joined.
Id. The court held that the claim became valid when
the issues were joined and that the defendant did not
need to file another claim for a jury trial to satisfy
General Statutes § 52-215. Home Oil v. Todd, supra, 343.
In the present case, even if it is assumed that the filing
of the offer of judgment was premature because the
plaintiff's complaint had not yet been amended, the
offer of judgment did not become void. We conclude
that when the amendment occurred, the offer became
valid, and the plaintiff did not need to file another offer
of judgment.

The defendant finally claims that the starting date
for § 52-192a interest to accrue was improper.12 In its
memorandum of decision, the court decided that the
‘‘most equitable and logical'' time for offer of judgment
interest to accrue would be from the date of the
amended complaint, June 24, 1996. The defendant
claims that this date is illogical and unfair, given that
it would have forced the defendant to accept the offer
of judgment prior to the start of the accrual of interest
and prior to an effective claim being filed.13 The court,
in its reasoning, equated the amended complaint with
the original complaint for purposes of § 52-192a. Pursuant
to the reasoning of Home Oil, we do not conclude
that such an equation was improper. The offer of judgment,
as was true of the claim for a jury trial, remained
dormant until the amended complaint superseded the
original complaint.

We conclude that the court correctly interpreted the
language of § 52-192a in this unique case to hold that
the amended complaint became the equivalent of the
original complaint for purposes of the calculation of
interest.