Opinion
No. CV08 501 22 99 S
July 22, 2008
MEMORANDUM OF DECISION
This is an application to discharge a mechanics lien brought by the plaintiffs, Malek Abou-Mansour and Nina Soalt, owners of a residence located at 212 Woodbridge Road, in Fairfield. The defendant is a home improvement company called Asset Builders Remodeling, LLC, hereinafter referred to as Asset Builders. Asset Builders has two members who are its only two employees, Thomas D'Agostino and his son Alexander D'Agostino. Although the defendants supervise construction, the skilled work was performed by various subcontractors.
On January 7, 2007, the plaintiff Nina Soalt and Asset Builders, acting through its member Alex D'Agostino, entered into a contract to completely remodel their residence in Fairfield. The total contract price was to be $145,000.00 to be paid in various performance stages. The contract listed the completion date to be five months from the date of the signing of the contract.
Alex D'Agostino testified that he was supervising the project until September 30, 2007 when he not only left the job site but resigned from the company.
On October 11, 2007, the plaintiffs terminated the contract with Asset Builders after receiving no response to a series of e-mails complaining of the failure to complete the project.
The defendant filed this mechanics lien against the residence owned by both Malek Abou-Mansour and Nina Soalt. The claim is that of the $145,000.00, they had been paid $123,250.00 which represented payments for the progress levels up to level four. They are seeking payment of progress level five, which, according to the contract, required completion of all finishing work, including electrical and plumbing installations for $14,500.00. The final completion payment of $7,250.00 was to be paid upon passing final inspection. In addition to the claim of $21,750.00 for completion of the contract, additional change orders were listed totaling $16,063.18 for a total of $36,548.82. The defendant listed $8,037.18 for contract credits and $8,016.00 as an estimate of cost to complete the contract which represented a reduction of $16,053.18. The net amount sought is $20,495.64.
The plaintiffs claim that they have expended $35,678.91 to repair work performed by the defendants and complete the project; that the defendants breached the contract by its abandonment nine months after the signing of the contract which had provided for a five-month completion date and further that the defendants violated the home improvement act as well the legal requirements for valid mechanics lien.
Based on the credible evidence and exhibits submitted during the hearing on this matter it is the opinion of this court by clear and convincing evidence that the plaintiffs have proven the mechanics lien is not valid.
Photographs taken at the time the defendants left the project confirm that there was no substantial performance of the contract. The plaintiffs testified as to inordinate delays due to lack of work being done as well as ongoing remediation required for work improperly performed. This was substantiated by e-mails in which the defendants agreed to reimburse the plaintiffs for hotel accommodations caused by delays. Finally, Robert Witkowski, a home improvement contractor who was engaged to complete the contract testified as to an extensive amount of work which was required complete the contract as well as to repair and/or replace work improperly performed by the defendants.
The defendants claim that they are entitled to payment pursuant to progress level five which was due upon completion of the finishing work including electrical and plumbing installations. The evidence presented by the plaintiffs and even the credits listed by the defendants for work to be completed verify that a claim for a level five payment is completely unsubstantiated as well as the claim for $7,250.00 to complete the project.
Discounting the invalid claim for $21,750.00 to complete the contract, the balance of the defendants' claim is $16,063.18 for change orders. Setting off those change orders, the defendants admit contract credits totally $8,036.00 for a total present balance of $8,027.18. The defendants did allocate a value for unfinished work, which this court did not find credible but did confirm that the contract had not been substantially completed.
This Court concludes that the plaintiffs expended $35,678.91 to repair and/or complete the contract which the defendants failed to perform. Mr. Witkowski calculated $10,929 was paid for work he performed in addition to the terms or conditions of the contract including installation of additional vinyl siding.
As was indicated after Alex D'Agostino left the job site on 30th 2007 and no work was done until the defendants terminated the contract on October 11, 2007.
The January 2007 home improvement contract was signed by Nina Soalt, who was co-owner of the house with Malek Abou-Mansour, who did not sign the contract. The defendants claim that they are entitled to foreclose a mechanics lien on the residence owned by both Nina Soalt and Malek Abou-Mansour under the Doctrine of Substantial Performance. This court disagrees.
Connecticut General Statutes § 20-429 requires that in order to be valid, a home improvement contract must be signed "by the owner and the contractor." Malek Abou-Mansour is an owner but did not sign the contract and it is not valid or enforceable against him.
In Caulkins v. Petrillo, 200 Conn. 713 (1986) Supreme Court held that although a home improvement contract had been completely performed by a contractor, but unsigned, recovery was prohibited pursuant to the requirements § 20-325(a) of the Connecticut General Statutes as it had not been in writing.
In Barrett Builders v. Miller, 215 Conn. 316 (1990) the Supreme Court held that in addition to those contracts completely performed by a contractor, a contract which did not comply with the home improvement act could not be the basis for a claim under unjust enrichment, quasi contract or quantum meriut. See also, Economos v. Liljedahl Brothers, Inc., 279 Conn. 300 (2006).
In Habetz v. Condon, 224 Conn. 231 (1992), the court indicated in footnote number 7 "the clear implication of the act is that a home improvement contractor meets all of the statutory requirements of C.G.S. section 20-429(a) is enforceable against any property owner or resident of a private residence or their agent who signed the contract. The act only precludes enforcement of an otherwise valid and enforceable contract against a co-owner or some other resident of the property who does not sign a contract meeting that statutory requirement." Id. pg., 241.
In C.G. Bostwick Co v. Purtill, CV06 5004603S (August 14, 2007, Superior Court, judicial district of Hartford at Hartford, Stengall, J.) an action was instituted against two owners of a premises based on a home improvement contract seeking damages as a result of unjust enrichment as well as foreclosure of a mechanics lien. One of the defendants, Sharon Purtill, did not sign the contract. The court concluded that the plaintiff could not hold Sharon Purtill liable under the unsigned home improvement contract under any other remedies of unjust enrichment, quasi contract or quantum meriut.
In summary, while the contractor may institute an action against any owner who signs a valid home improvement contract, they may not maintain any action against an owner who does not sign a home improvement contract. In this case, the defendants are attempting to foreclose on a residence co-owned by the plaintiff with no basis for depravation of his property interest. For that reason, the lien is not valid and should be discharged.
Finally, the plaintiffs claim that the defendants failed to satisfy its burden of proof establishing a valid home improvement contract.
Section 20-420a of the Connecticut General Statutes requires that it is a violation to hold oneself out to be a home improvement salesman without first obtaining a current certification of registration from the Department of Consumer Protection. In addition, § 20-420b requires that a contractor may not employ a salesman from procuring business from an owner or allow any person to act as a salesman on its behalf unless the salesman is a registered home improvement salesman. General Statutes § 20-420a(d).
The plaintiffs challenge the signing of the home improvement contract by Alex D'Agostino as he testified that he was neither a registered home improvement salesman or a registered home improvement contractor. Mr. D'Agostino claimed that as a member and officer of Asset Builders, which is a registered home-improvement contractor, an individual home improvement salesman certificate was not required.
§ 20-420 of the Connecticut General Statutes provides that an individual partner or officer or director of a corporation registered as a home improvement contractor shall not be required to obtain a salesperson's certificate.
However, the plaintiffs make a further claim that the defendant failed to establish the necessary burden of proof that there was any registration as home improvement contractor. In Cuda et al v. Turey, CV02 0393361S (April 2004), Superior Court, judicial district of Fairfield (Karazin, J.), the court found that the contractor had failed to prove that he was a registered home-improvement contractor. The court held that it was insufficient for the contractor to testify that he was in fact a registered home improvement contractor when the best evidence would have been subdmission of the certificate of registration. This court concurs with that opinion and finds that at this stage of the process, the defendants have failed to establish that they are either individually or as a licensed limited company registered as a home improvement contractor.
For the foregoing reasons, the mechanics lien is discharged.