Pittu v. Bugaj Contractors Co., LLC

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Pittu v. Bugaj Contractors Co., LLC

SARAH PITTU ET AL. v. BUGAJ CONTRACTORS
COMPANY, LLC
(AC 47215)
Moll, Suarez and Seeley, Js.

Syllabus

The defendant contractor appealed from the judgment of the trial court
discharging a mechanic’s lien that the defendant had placed on certain real
property owned by the plaintiffs. The defendant claimed that the court
improperly shifted the burden of proof to the defendant by requiring it to
prove that it did not breach a contract entered into between the parties,
rather than requiring it to prove only that there was probable cause to
sustain its lien. Held:

This court concluded that, although the trial court articulated the correct
burdens of proof delineated in the statute (§ 49-35b) governing the hearing
on the plaintiffs’ application for the discharge of the mechanic’s lien, the
trial court’s determinations rested on legally erroneous grounds, as the trial
court incorrectly determined that its finding that the defendant had breached
the parties’ contract precluded the defendant from establishing a valid
mechanic’s lien, because, even though the defendant had not substantially
performed under the parties’ contract, the defendant could properly rely
on the contract price, and the invoices and change orders submitted there-
with, to demonstrate the value of its materials and services for the purposes
of establishing that there was probable cause to sustain the lien.

Argued January 13—officially released July 29, 2025

Procedural History

Application to reduce or discharge a mechanic’s lien
on certain real property owned by the plaintiffs, brought
to the Superior Court in the judicial district of Fairfield
and tried to the court, Hon. Barry K. Stevens, judge
trial referee; judgment granting the application, from
which the defendant appealed to this court. Reversed;
further proceedings.

Sabato P. Fiano, for the appellant (defendant).
Anthony J. Musto, for the appellees (plaintiffs).
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Pittu v. Bugaj Contractors Co., LLC

Opinion

SUAREZ, J. The defendant, Bugaj Contractors Com-
pany, LLC, appeals from the judgment of the trial court
discharging a mechanic’s lien that it had placed on
certain real property owned by the plaintiffs, Sarah Pittu
and Raul Herrera. The defendant claims that the court
improperly (1) shifted the burden of proof to the defen-
dant at the hearing held pursuant to General Statutes
§ 49-35a on the plaintiffs’ application to discharge the
mechanic’s lien by requiring it to prove that it did not
breach a contract entered into between the parties,
rather than requiring it to prove only that there was
probable cause to sustain its lien, (2) found, ‘‘presum-
ably by clear and convincing evidence,’’ that the defen-
dant breached the contract between the parties, and
(3) concluded that the mechanic’s lien was premised
entirely on the contract and, therefore, failed to sustain
the lien on the basis of applicable principles of restitu-
tion and/or unjust enrichment.1 (Emphasis omitted.) In
support of its first claim, the defendant argues that it
was not obligated to prove a breach of contract claim
at the hearing. We agree that the trial court incorrectly
determined that its finding that the defendant breached
the parties’ contract precluded the defendant from
establishing a valid mechanic’s lien and, accordingly,
we reverse the judgment of the court and remand the
case for further proceedings.
The following facts, as found by the court or as undis-
puted in the record, and procedural history are relevant
to this appeal. ‘‘In a contract dated December 23, 2020,
the plaintiffs retained the defendant to perform home
improvement renovations [(project)] on [their] property
[located at 222 High Ridge Road in Fairfield (property)].
Pursuant to the contract, the total cost of the project
1
For ease of discussion, we address the claims in a different order than
they were presented in the defendant’s principal appellate brief.
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was $662,050 (plus any approved change orders). The
evidence indicates that the plaintiffs paid $502,961.41
to the defendant and another $9843.35 to third parties
for work under the contract or relating to it.2 . . .
‘‘The work was scheduled to begin on January 4, 2021,
and was to be substantially completed by August 15,
2021. The contract provide[s] that time was not of the
essence. The contract further provide[s] that a [t]empo-
rary certificate of occupancy shall be deemed substan-
tial completion.’’ (Citations omitted; footnote added;
internal quotation marks omitted.) The project was not
substantially completed by August 15, 2021, or by the
last time the defendant worked at the property near
the end of June, 2022. No temporary certificate of occu-
pancy had been obtained by the time the defendant
stopped work at the property.
In September, 2022, the defendant filed a mechanic’s
lien on the property, which indicated that its filing was
‘‘in accordance with a certain contract between it and
the [plaintiffs]’’ and was ‘‘for just services rendered and/
or materials furnished’’ during the project. The plaintiffs
subsequently filed an application to reduce or discharge
the mechanic’s lien, alleging that there was no probable
cause to sustain the validity of the lien and/or that the
amount of the lien was excessive. The defendant filed
an objection thereto.
On May 19 and June 30, 2023, the court, Hon. Barry
K. Stevens, judge trial referee, held a hearing on the
plaintiffs’ application. Over the course of this hearing,
the court received documentary evidence, which included
2
At the court’s request, the parties filed a stipulation summarizing the
amount that the defendant claimed it was owed, which totaled $237,407.24,
and the plaintiffs’ position as to the maximum possible lien amount, which
totaled $144,805.24. Specifically, the plaintiffs disputed three invoices for
‘‘[e]xtras [c]laimed’’ by the defendant. The stipulation indicated that its filing
did not constitute an admission by the plaintiffs that any amount was due.
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the parties’ contract, certain invoices, and the certifi-
cate of mechanic’s lien, and heard testimony from Pittu
and Grzegorz Bugaj, the sole member of the defendant.3
At the hearing, Pittu testified that the defendant delayed
work, failed to respond to communications from the
plaintiffs, and damaged and/or failed to repair items in
the home and that, eventually, the relationship became
contentious. Pittu testified that the defendant stopped
work on the project in June, 2022. Bugaj testified to the
contrary that he ‘‘did not stop working on the property.
I wasn’t allowed to work on the property [after June,
2022] and, no, I was not allowed to continue work or
[to] obtain the certificate of occupancy.’’ Pittu denied
that either she or Herrera had prevented the defendant
from working on the project. In particular, Pittu testified
that, in July, 2022, she had told Bugaj that he could
return to the property after her daughter’s birthday and
that she would ‘‘get back to him after.’’ ‘‘After the work
stopped (and before the filing of the mechanic’s lien),
the parties engaged in discussions about the defendant
resuming work under the contract, but these discus-
sions were unsuccessful.’’
After the conclusion of the hearing, the parties filed
simultaneous posttrial hearing briefs and reply briefs.
The plaintiffs argued therein that (1) the defendant did
not establish probable cause to sustain the validity of
its lien, and (2) they had established that the lien was
invalid by clear and convincing evidence because the
defendant failed to substantially perform under the con-
tract and because it provided ‘‘no other basis’’ to sup-
port its lien. The defendant argued that it provided
‘‘clear, definitive, and specific evidence as to the amount
3
The court heard this case together with Pittu v. T&J Custom Woodwork-
ing, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-22-
6118478-S (October 23, 2023), which concerned the plaintiffs’ application
to discharge a mechanic’s lien filed by a subcontractor that had performed
work on the project. The cases were not consolidated, however, and T&J
Custom Woodworking, LLC, has not appeared or participated in this appeal.
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of contract work that it completed at the property,
versus the amount that it was paid by the plaintiffs.’’
On December 12, 2023, the court issued a ruling grant-
ing the plaintiffs’ application to discharge the mechan-
ic’s lien. The court found that the defendant breached
the parties’ contract by abandoning the project without
explanation at the end of June, 2022. The court explicitly
credited Pittu’s testimony that the defendant had ceased
working on the project without reason and discredited
Bugaj’s contrary testimony. The court stated that the
defendant’s ‘‘mechanic’s lien claim is premised entirely
on the contract.’’ The court noted that a party’s breach
of contract does not necessarily prevent recovery in
restitution but, nevertheless, found that the defendant
was not entitled to equitable relief, inter alia, in light
of its finding that ‘‘[t]he defendant has provided no
credible evidence explaining why it stopped work on
the project.’’ For those reasons, the court concluded
‘‘that the defendant has failed to establish probable
cause to sustain the validity of its lien and that the
plaintiffs have established by clear and convincing evi-
dence that the lien should be discharged.’’ This appeal
followed.4 Additional facts will be set forth as neces-
sary.
On appeal, the defendant claims, inter alia, that the
trial court improperly shifted the burden of proof by
requiring it to prove a breach of contract claim at a
proceeding in which it was statutorily required to prove
only that there was probable cause that its mechanic’s
4
Pursuant to General Statutes § 49-35c (a), an order granting an applica-
tion to discharge a mechanic’s lien is a final judgment for purposes of appeal.
On February 13, 2024, the court approved the parties’ joint stipulation for
an appellate stay of the effect of the court’s discharge order, pending the
disposition of this appeal. The parties further stipulated that the statute of
limitations by which the defendant may bring any action to foreclose on its
mechanic’s lien shall be tolled until sixty days after the disposition of this
appeal, including the expiration of any appellate stay.
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lien was valid. Specifically, the defendant argues that,
although the court appeared to have required the defen-
dant to have ‘‘affirmatively raised and disproved’’ that
it did not breach its contract with the plaintiffs when
it ceased work on the project, the defendant had no
obligation to prove a breach of contract claim at the
hearing on the plaintiffs’ application. The plaintiffs
counter that ‘‘nothing in the . . . court’s decision
states that the defendant was required to prove anything
regarding a breach of contract.’’ We conclude that the
court improperly applied the law in grounding its deter-
minations that (1) the defendant failed to establish prob-
able cause that the lien was valid and (2) the plaintiffs
established by clear and convincing evidence that the
lien was not valid on its finding that the defendant
breached the parties’ contract.5
We first set forth the standard of review and relevant
legal principles. The issue of whether the court held
the parties to the proper standard of proof is a question
of law that we review de novo. See, e.g., Downing v.
5
Our holding with respect to this claim is also dispositive of the defen-
dant’s second and third claims. With respect to the defendant’s claim that
the court improperly found, ‘‘presumably by clear and convincing evidence’’;
(emphasis omitted); that it breached the parties’ contract, we need not
determine whether this finding was clearly erroneous because even assum-
ing, without deciding, that the defendant breached the contract, a breaching
party may still assert a valid lien, for the reasons stated in this opinion.
For the same reason, we need not separately address the defendant’s
claim that the court improperly declined to sustain the lien under theories
of restitution and/or unjust enrichment. Although the court stated that the
defendant had not made a restitution claim, it nevertheless addressed that
issue and found that the defendant was not entitled to equitable relief. In
so doing, the court reasoned that it may ‘‘evaluate the reasons for and the
circumstances surrounding the breach of contract and may consider whether
the breach was nonwilful. The defendant has provided no credible evidence
explaining why it stopped work on the project.’’ As we explain subsequently
in this opinion, whether the defendant intentionally breached the parties’
contract, and whether that breach precluded it from recovering restitution
damages, are not dispositive of whether the defendant presented a valid
lien at a hearing pursuant to General Statutes § 49-35b.
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Dragone, 216 Conn. App. 306, 330, 285 A.3d 59 (2022),
cert. denied, 346 Conn. 903, 287 A.3d 601 (2023). In the
absence of a contrary indication, ‘‘we must presume
that the court applied the correct legal standard.’’ (Inter-
nal quotation marks omitted.) In re Eric M., 217 Conn.
App. 809, 837, 290 A.3d 411, cert. denied, 346 Conn. 921,
291 A.3d 1040 (2023). Our review of the trial court’s
ultimate determinations that (1) the defendant did not
establish probable cause that the lien was valid, and
(2) the plaintiffs established the invalidity of the lien
by clear and convincing evidence, however, are subject
to the clearly erroneous standard of review. See 36
DeForest Avenue, LLC v. Creadore, 99 Conn. App. 690,
695, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d
311 (2007); see also Kaplan v. Scheer, 182 Conn. App.
488, 501, 190 A.3d 31, cert. denied, 330 Conn. 913, 193
A.3d 49 (2018).
The determination of whether the trial court’s deci-
sion is clearly erroneous ‘‘involves a two part function:
[when] the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision; where
the factual basis of the court’s decision is challenged
we must determine whether the facts set out in the
memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings
in the whole record, those facts are clearly erroneous.
That is the standard and scope of this court’s judicial
review of decisions of the trial court. Beyond that, we
will not go. . . . 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.) Pro-
Build East, LLC v. Poffenberger, 136 Conn. App. 184,
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187–88, 45 A.3d 654 (2012). ‘‘Our deferential standard
of review, however, does not extend to the court’s inter-
pretation of and application of the law to the facts. It
is axiomatic that a matter of law is entitled to plenary
review on appeal.’’ (Internal quotation marks omitted.)
Princess Q. H. v. Robert H., 150 Conn. App. 105, 112,
89 A.3d 896 (2014).
To the extent that the defendant’s claim requires us
to apply the relevant statutes governing mechanic’s
liens, our review is plenary. See, e.g., E & M Custom
Homes, LLC v. Negron, 140 Conn. App. 92, 103, 59 A.3d
262 (2013), appeal dismissed, 314 Conn. 519, 102 A.3d
707 (2014); 36 DeForest Avenue, LLC v. Creadore,
supra, 99 Conn. App. 699–700. A mechanic’s lien is a
creature of statute. See Newtown Associates v. North-
east Structures, Inc., 15 Conn. App. 633, 636, 546 A.2d
310 (1988). General Statutes § 49-33 (a) provides in rele-
vant 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 its appurtenances or in the improve-
ment of any lot or in the site development or subdivision
of any plot of land, and the claim is by virtue of an
agreement with or by consent of the owner of the land
upon which the building is being erected or has been
erected or has been moved, or by consent of the owner
of the lot being improved or by consent of the owner
of the plot of land being improved or subdivided . . .
then the plot of land, is subject to the payment of the
claim.’’ Section 49-33 (b) further provides in relevant
part that ‘‘[t]he claim is a lien on the land, building and
appurtenances or lot or in the event that the materials
were furnished or services were rendered in the site
development or subdivision of any plot of land, then
on the plot of land . . . .’’
A mechanic’s lien is not valid ‘‘unless the person
performing the services or furnishing the materials (1)
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. . . lodges with the town clerk of the town in which
the building, lot or plot of land is situated a certificate
in writing, which shall be recorded by the town clerk
with deeds of land, (A) describing the premises, the
amount claimed as a lien thereon . . . and the date of
the commencement of the performance of services or
furnishing of materials, (B) stating that the amount
claimed is justly due . . . .’’ General Statutes § 49-34.
The procedures governing applications to discharge
or reduce a mechanic’s lien are also governed by statute.
Section 49-35a (a) provides in relevant part: ‘‘Whenever
one or more mechanics’ liens are placed upon any real
estate pursuant to sections 49-33, 49-34, 49-35 and 49-
38, the owner of the real estate, if no action to foreclose
the lien is then pending before any court, may make
application . . . that a hearing or hearings be held to
determine whether the lien or liens should be dis-
charged or reduced. . . .’’ Upon the hearing held on
such an application, ‘‘the lienor shall first be required
to establish that there is probable cause to sustain the
validity of his lien. 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 lien
should not be sustained or the amount of the lien
claimed is excessive and should be reduced.’’ General
Statutes § 49-35b (a).
After the hearing, ‘‘the court or judge may: (1) Deny
the application or motion if probable cause to sustain
the validity of the lien is established; or (2) order the lien
discharged if (A) probable cause to sustain its validity
is not established, or (B) by clear and convincing evi-
dence its invalidity is established; or (3) reduce the
amount of the lien if the amount is found to be excessive
by clear and convincing evidence; or (4) order the lien
discharged or reduce the amount of the lien conditioned
upon the posting of a bond, with surety, in a sum
deemed sufficient by the judge to indemnify the lienor
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for any damage which may occur by the discharge or
the reduction of amount.’’ General Statutes § 49-35b (b).
‘‘The standard of proof applicable in proceedings to
discharge mechanic’s liens is a modest one. For a lien
to be upheld, a lienor must establish only that there is
probable cause to sustain the validity of the lien. Proof
of probable cause is not as demanding as proof by a
fair preponderance of the evidence. . . . It is important
to remember that the [lienor] does not have to establish
that he will prevail, only that there is probable cause
to sustain the validity of the claim. . . . The legal idea
of probable cause is a bona fide belief in the existence
of the facts essential under the law for the action and
such as would warrant a man of ordinary caution, pru-
dence and judgment, under the circumstances, in enter-
taining it. . . . Probable cause is a flexible common
sense standard. It does not demand that a belief be
correct or more likely true than false.’’ (Citation omit-
ted; footnote omitted; internal quotation marks omit-
ted.) 36 DeForest Avenue, LLC v. Creadore, supra, 99
Conn. App. 694–95. Once probable cause has been
established, the party applying for a discharge of the
lien must establish by clear and convincing evidence
that the lien is invalid. See Rutka v. Meriden, 145 Conn.
App. 202, 210, 75 A.3d 722 (2013).
‘‘In conducting our review, we also must remain cog-
nizant of the remedial purpose of our mechanic’s lien
statutes, i.e., to give one who furnishes materials or
services the security of the building and land for the
payment of his claim by making such claim a lien
thereon . . . and the oft-stated directive that those
provisions should be liberally construed in order to
implement [that] remedial purpose . . . .’’ (Citation
omitted; internal quotation marks omitted.) 36 DeForest
Avenue, LLC v. Creadore, supra, 99 Conn. App. 695.
In the present case, the court articulated the correct
burdens of proof delineated in § 49-35b and applied
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them to the facts in concluding that the defendant did
not establish probable cause that its lien was valid and
that the plaintiffs established by clear and convincing
evidence that the lien was not valid. Thus, ‘‘in the
absence of a contrary indication, we must presume that
the court applied the correct legal standard.’’ (Internal
quotation marks omitted.) In re Eric M., supra, 217
Conn. App. 837.
Although we presume the court applied the correct
legal standard, for the reasons that follow, we conclude
that the court incorrectly determined that its finding
that the defendant breached the parties’ contract con-
clusively precluded it from asserting a valid mechanic’s
lien. Thus, we agree with the defendant that it ‘‘had no
obligation to prove [a] breach of contract claim at the
hearing.’’ (Emphasis omitted.) Therefore, we conclude
that the court’s determinations that (1) the defendant
did not establish probable cause as to the validity of
the lien and (2) the plaintiffs established the lien’s inval-
idity by clear and convincing evidence rested on legally
erroneous grounds. The court stated that the defen-
dant’s mechanic’s lien claim was ‘‘premised entirely on
the contract.’’ The court noted the defendant’s argu-
ment that its calculation of the ‘‘amount owed under
the contract [was] correct and accurate and [that] proof
of substantial performance [was] unnecessary for this
calculation.’’ The court rejected that contention, con-
cluding that the ‘‘fallacy’’ of the defendant’s argument
lay in its breach of the parties’ contract. Thus, the court
concluded that its determination that the defendant
breached the contract definitively established that the
lien was not valid.6
6
We disagree with the plaintiffs’ arguments that the defendant should
have filed a motion for articulation and/or to reargue if it believed that the
court (1) overlooked a basis supporting the validity of the lien other than the
contract or (2) improperly applied the burden of proof. The court sufficiently
articulated its rationale in determining whether the defendant’s lien was
valid under the burden shifting scheme pursuant to § 49-35b. The fact that
the defendant challenges the court’s determination that its lien was not
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The issue before the court was whether the defendant
had established probable cause that the lien it placed on
the property was valid and, if so, whether the plaintiffs
established the lien’s invalidity by clear and convincing
evidence. A lienor may establish the validity of a
mechanic’s lien by introducing evidence of its perfor-
mance of services and/or furnishing of materials in sup-
port of their ‘‘claim . . . by virtue of an agreement with
or by consent of the owner of the land . . . .’’ General
Statutes § 49-33; see also, e.g., Ceci Bros., Inc. v. Five
Twenty-One Corp., 51 Conn. App. 773, 777, 724 A.2d
541 (1999) (‘‘[p]ursuant to . . . § 49-33 (a), the persons
entitled to file a mechanic’s lien are those who have
furnished materials or rendered services in connection
with the construction . . . or repairs of any building
. . . or in the improvement of any lot’’ (internal quota-
tion marks omitted)).
‘‘[I]n a foreclosure of a mechanic’s lien, a contractor
is entitled to the value of the materials that it furnished
or the services that it rendered in the construction of
a project. . . . [T]he substantial performance doctrine
is not the only method available for ascertaining that
value. The reasonable value of the materials and ser-
vices can be proven by: (1) providing evidence that the
contract price represents the value of a contractor’s
materials and services . . . (2) demonstrating the con-
tractor substantially performed such that the contract
valid because it breached the contract does not necessarily mean that the
court overlooked a relevant principle of law. The defendant, therefore, was
not required to file a motion to reargue or for articulation. ‘‘[T]he purpose
of a reargument is . . . to demonstrate to the court that there is some
decision or some principle of law which would have a controlling effect,
and which has been overlooked, or that there has been a misapprehension
of facts.’’ (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn. App.
194, 202, 655 A.2d 790 (1995); see also, e.g., Northland Two Pillars, LLC v.
Harry Grodsky & Co., 133 Conn. App. 226, 231, 35 A.3d 333 (2012) (‘‘[a]n
articulation is appropriate [when] the trial court’s decision contains some
ambiguity or deficiency reasonably susceptible of clarification’’ (internal
quotation marks omitted)).
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is the proper valuation of its materials and services
. . . or (3) submitting evidence of the cost to complete
the work.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Absolute Plumbing & Heat-
ing, LLC v. Edelman, 146 Conn. App. 383, 396–97, 77
A.3d 889 (Absolute Plumbing), cert. denied, 310 Conn.
960, 82 A.3d 628 (2013).
The court found, and the defendant has not disputed
on appeal, that there was no substantial performance
in the present case. The contract provides that a ‘‘[t]em-
porary certificate of occupancy shall be deemed sub-
stantial completion . . . .’’ It is undisputed that the
defendant did not obtain the certificate of occupancy
before it stopped working on the project and that the
contract was not fully performed. Whether the defen-
dant substantially performed, although relevant under
the framework outlined in Absolute Plumbing, was not
dispositive of the lien’s validity. Even if we assume
without deciding that the court’s finding that the defen-
dant intentionally abandoned the project was not
clearly erroneous, the defendant could still properly
rely on the contract price, and the invoices and change
orders submitted therewith, to demonstrate the ‘‘value
of [its] materials and services . . . .’’ (Internal quota-
tion marks omitted.) Absolute Plumbing & Heating,
LLC v. Edelman, supra, 146 Conn. App. 396–97.7 Thus,
we reject the plaintiffs’ argument that ‘‘[o]nly when the
contract is substantially performed can the contract
price be used as the value of the lien.’’ We stated
unequivocally to the contrary in Absolute Plumbing
that substantial performance is not the only method
available to establish the value of a contractor’s materi-
als or services. See Absolute Plumbing & Heating, LLC
7
We note that the defendant has not argued that it submitted any evidence
of the cost to complete the work, which could have been another avenue
to demonstrate the lien’s validity. See Absolute Plumbing & Heating, LLC
v. Edelman, supra, 146 Conn. App. 396–97.
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v. Edelman, supra, 396–97; see also, e.g., Pero Building
Co. v. Smith, 6 Conn. App. 180, 185, 504 A.2d 524 (1986)
(‘‘[t]he right to a mechanic’s lien is not a contractual
right, rather it is a statutory right available to secure,
as well as to enforce, payment for materials and labor
rendered’’). Accordingly, the court incorrectly con-
cluded that the defendant’s breach of the parties’ con-
tract conclusively precluded it from establishing a valid
mechanic’s lien.
Negron is also instructive to our analysis. In that case,
this court affirmed the trial court’s calculation of a
mechanic’s lien filed by the plaintiff contractor. See
E & M Custom Homes, LLC v. Negron, supra, 140 Conn.
App. 94. The trial court found, and this court affirmed,
that the plaintiff in that case did not substantially per-
form under the parties’ contract. Id., 105–106. In fact,
the trial court in Negron found that the defendant prop-
erty owners were entitled to recover damages on their
counterclaim, which asserted violations of the New
Home Construction Contractors Act, General Statutes
§ 20-417a et seq., and the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq. Id.,
96–97. The plaintiff claimed that the trial court improp-
erly referred to the parties’ construction loan budget,
rather than to the contract, in determining the lien
amount. Id., 102. We disagreed, noting that ‘‘[t]he pur-
pose of the [mechanic’s lien] statute is to give a contrac-
tor security for labor and material. . . . If the materials
are not furnished, and the work is not done, in the
construction, raising, removal, or repairs of a building,
there can be no lien. . . . Prior precedent from [our
Supreme Court has] concluded that the statute was not
intended to provide a security interest for a builder’s
expectation of profit or other contract measure of dam-
ages.’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 104. In Negron, the plaintiff ‘‘did not provide
evidence that the contract price represented the value
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Pittu v. Bugaj Contractors Co., LLC

of its materials and services’’; rather, we concluded that
the evidence supported the court’s conclusion that the
balance due on the contract was profit, not the value
of the plaintiff’s materials and services. Id., 105. Accord-
ingly, this court affirmed the trial court’s conclusion
that the value of the contractor’s materials furnished
and services rendered should be based on the construc-
tion budget. Id., 106; see also, e.g., Dreambuilders Con-
struction, Inc. v. Diamond, 121 Conn. App. 554, 562
and n.4, 997 A.2d 553 (2010) (trial court’s finding as to
value of services rendered and materials furnished was
not clearly erroneous because evidence showed that
amount of claimed mechanic’s lien, although based on
‘‘contract price less the amount paid,’’ was not reflec-
tion of builder’s expectation of profit or other contrac-
tual measure of damages (internal quotation marks
omitted)).
This court in Negron, however, did not conclude that
the lack of substantial performance precluded the con-
tractor from asserting any lien amount. Rather, we
stated that, in such a case, the lien may be sustained
on the value of the services and/or materials rendered.
See E & M Custom Homes, LLC v. Negron, supra, 140
Conn. App. 105–106; cf., e.g., Intercity Development,
LLC v. Andrade, 96 Conn. App. 608, 613–14, 901 A.2d
731 (2006) (plaintiff could not sustain mechanic’s lien
in reliance on contract price when it did not offer proof
of reasonable value of work done and materials fur-
nished), rev’d in part on other grounds, 286 Conn. 177,
942 A.2d 1028 (2008).
In the present case, by contrast, the court incorrectly
concluded that the defendant was not entitled to any
lien amount on the basis of its breach of the parties’
contract, without considering whether the contract
price and invoices presented represented the value of
the defendant’s services. At the hearing, the defendant
submitted a copy of the lien, the facial validity of which
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was not disputed, as well as the contract between the
parties, invoices and change orders. Bugaj testified
regarding the work that the defendant performed and
as to the invoices that reflected that work. The plaintiffs
disputed the lien amount before the trial court in the
parties’ written stipulation and in their posthearing
reply brief. See footnote 2 of this opinion. On appeal,
the plaintiffs argue that the defendant did not offer
evidence of the value of its services rendered. The defen-
dant counters that it offered such evidence through its
invoices, change orders, and Bugaj’s testimony.
The court stated that the defendant ‘‘insists that,
before leaving the project, it provided services and
materials under the contract for approximately $237,407,
for which it was not paid . . . .’’ Because the court
concluded that the defendant’s breach of contract pre-
cluded it from recovering any lien amount, however,
it did not make any findings as to the value of the
defendant’s services, or as to whether the contract price
accurately reflected the value of services rendered, as
opposed to the defendant’s expectation of profit or
other contract measure of damages. As stated pre-
viously, the court incorrectly concluded that the defen-
dant’s breach was dispositive of whether the lien was
valid. Accordingly, the case must be remanded for a
new hearing pursuant to § 49-35a in accordance with
this opinion.8
8
Because the trial court did not make any factual findings as to the proper
lien amount, and because it is improper for an appellate court to make its
own factual findings; see, e.g., Rose v. Commissioner of Correction, 348
Conn. 333, 349–50, 304 A.3d 431 (2023); we do not address for the first time
on appeal what the proper lien amount should be, if any, or whether the
lien amount claimed by the defendant should be reduced in light of any
payments already made by the plaintiffs pursuant to § 49-35b (b) (3). See,
e.g., ProBuild East, LLC v. Poffenberger, supra, 136 Conn. App. 192 (lien
amount may be diminished by ‘‘bona fide payments . . . made by the owner
. . . before receiving notice of [the mechanic’s] lien’’ (internal quotation
marks omitted)).
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It bears reemphasis that ‘‘the burden of proof at a
probable cause hearing is a low one, and the court in
evaluating the evidence must weigh both factual and
legal probabilities. . . . [A] probable cause hearing is
not a full-scale trial on the merits and the defendant
did not have to establish that [it] ultimately will prevail,
only that there is probable cause to sustain the validity
of the claim.’’ (Citation omitted.) 36 DeForest Avenue,
LLC v. Creadore, supra, 99 Conn. App. 698. For the
foregoing reasons, the court incorrectly concluded that
the mechanic’s lien filed by the defendant was not valid
in light of its finding that the defendant intentionally
breached the parties’ contract.
The judgment granting the application to discharge
the mechanic’s lien is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.