Opinion
No. CV 04-0286633 S
January 23, 2006
MEMORANDUM OF DECISION
The plaintiffs, Bruce K. Magness and Darla Y. Magness have applied to discharge a mechanic's lien filed on their property at 21 Wilbur Avenue, Meriden, Connecticut by the defendant CPI Home Business Improvement, LLC ("CPI"). Under General Statutes § 49-35b, in a hearing on an application to reduce or discharge a mechanic's lien "the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien." Notwithstanding this burden, prior to the commencement of evidence, the parties advised the court of their agreement to request that the court address only the issue of the plaintiffs' claim that the mechanics lien is invalid because the underlying agreement is unenforceable by virtue of the defendant's failure to comply with General Statutes § 20-429 ("The Home Improvement Act").
The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more true than false . . . Morris v. Cee Dee, LLC, 90 Conn.App. 403, 411, 877 A.2d 899 (2005). The court thus does not reach the merits of CPI's claims in the context of an application to discharge a mechanics lien.
The defendant herein, CPI, has commenced an action seeking strict foreclosure of its mechanics lien. In that action, the Magnesses claimed, by way of special defense, that the agreement is unenforceable because it does not comply with General Statutes § 20-429. The Magnesses also filed a counterclaim alleging, CT Page 1363 inter alia, that CPI's failure to comply with the act constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
Having considered the testimony and other evidence presented at the hearing, and the credibility of the witnesses, Bruce K. Magness and Luis F. Lopez, President and CEO of CPI, the court finds that the plaintiffs and the defendant entered into a contract on March 4, 2003, under the terms of which the defendant agreed to perform certain work in connection with the remodeling and improvement of a home located at plaintiffs' property. The contract was based on plank prepared by Bruce Magness in January 2003 in connection with solicitation of bid proposals. CPI responded with a proposal dated February 17, 2003, signed by Lopez. The proposal was mailed to Magness with a cover letter dated February 14, 2003. On March 4, 2003, Bruce Magness signed the proposal under which the plaintiffs agreed to pay $62,540.00 for all the work under the contract. The proposal did not include a commencement date because the plaintiff needed to arrange financing. Nor did the contract include a completion date. The contract was never amended to indicate a start or completion date.
Subsequently, in late April or early May 2003, Bruce Magness presented a set of more detailed plans to Lopez which indicated a new basement and required a ten-foot concrete foundation. According to the defendant, the detailed design plans substantially changed the scope of the project. After Lopez received the new design plans, he indicated to Bruce Magness that the new plans would increase the cost of the job by about $30,000.00. Bruce Magness acknowledged that the original plans did not indicate a fill basement and deep foundation and acknowledged the change would cost more. Lopez did not present the plaintiffs with a new proposal or contract reflecting the changes in conformity with the requirements of the Home Improvement Act. On May 8, 2003, the plaintiffs paid a $25,000.00 deposit to Lopez. In late May or early June 2003, the defendant commenced work in accordance with the April set of designs. The plaintiffs paid the defendant an additional $20,000.00 in September 2003.
The defendant did not submit a revised proposal and did not reduce to writing the costs of the additional work until November 2003 when he presented an "addendum" to the original proposals in the amount of $31,323.00. CPI submitted a "revised addendum" in December 2003 in the amount of $52,102.21. The plaintiffs disputed the additional costs. The defendant ceased work at the plaintiff's property in December 2003. In January 2004, CPI filed its mechanics lien claiming $60,640.26 owed by the plaintiffs.
General Statutes § 20-429(a) provides in relevant part: "No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor . . .
The plaintiffs have claimed several ways in which the agreement signed by Bruce Magness on March 4, 2003, does not meet the statutory requirements, including the failure of the documents to set forth transaction, start and completion dates, and the failure to furnish, in duplicate, a fully completed "Notice of Cancellation." In Sidney v. De Vries, 215 Conn. 350, CT Page 1361 575 A.2d 228 (1990), the Supreme Court denied the contractor recovery because: (1) although certain documents were exchanged between the parties, it was impossible to harmonize them as they were "full of contradictory terms" and did not set out the scope of the work to be performed or other details necessary to a complete written agreement as required by § 20-429(a); and (2) in light of the requirement of § 20-429(a) that the home improvement contract be in writing, the defendant could not prevail on his oral contract claim. Although the court finds that the writings exchanged by Magness and CPI do not comply with General Statutes § 20-429, there is no need to assess the significance of those defects because, under the facts found, the issue as framed by the parties is controlled by the cases of Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986) and Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990). In Caulkins, an action to foreclose a mechanics lien, the parties had agreed in writing to the scope of the work and the cost of a home remodeling. Subsequently, the plaintiff contractor submitted a proposal with a significantly increased cost. The defendants paid some of the costs in excess of the original contract. When the parties had a falling out, the defendants refused to pay all of the additional costs. In the action to foreclose a mechanics lien, the plaintiff relied upon his completion of the work and on an oral agreement of the defendants to pay. The Supreme Court upheld the conclusion of the trial court that the enforcement of an oral home improvement contract, even one that has been fully performed by the contractor and partially performed by the homeowner, is barred by the provisions of General Statutes § 20-429.
Likewise, in Barrett Builders the court held that a home improvement contractor may not recover via a theory of quasi-contract or quantum meruit for partial or even full performance of a contract that did not comply with the act. Id. at 322. To allow such recovery would undermine the remedial purposes of the act; Id. at 323; and compromise the legislative intent "to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer." Id. at 327.
"The only exceptions to this blanket denial of a right to recover are when the noncompliance with the act is of a `minor and highly technical nature'; Wright Bros., Builders, Inc. v. Dowling, 247 Conn. 218, 232, 720 A.2d 235 (1998); or when the consumer has acted in bad faith in his dealings with the contractor. Habetz v. Condon 224 Conn. 231, 618 A.2d 501 (1992). The complete absence of a written contract that complies with the act, or at the very least a written and signed memorialization of the changes in the terms and conditions of the original contract, as required by § 20-429(a), cannot be deemed a `minor and highly technical' deviation from the act," Pools by Murphy Sons v. Dept Of Consumer Pro., 48 Conn.Sup. 248, 841 A.2d 292 (2003).
Moreover, notwithstanding the defendant's claim that the plaintiffs are responsible for the extra work and modifications because the defendant could not get them to sign addenda for the costs, the evidence does not support a claim that the defendants acted in bad faith. The written addenda set forth the defendant's charges for additional work in connection with the detailed plans of April 2003. The addenda were submitted by the defendant well after the fact — in November and December of 2003, and the charges nearly doubled the cost of the project. In Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 618 A.2d 506 (1992), the Appellate Court defined the concept of bad faith as involving some element of "design or motive of interest or ill will." The credible evidence simply does not support such a claim.
As set forth above, the lien is invalid because the contract between the plaintiffs and the defendant is unenforceable and because the defendant has not shown that the plaintiffs acted in bad faith. Therefore, the application to discharge is granted, and the lien of the defendant is ordered discharged.