Opinion
No. CV06 500 30 16S
December 4, 2006
MEMORANDUM OF DECISION FACTS
The plaintiff, Parvin Group, LLC, brings a five-count complaint against the defendants, Kevin Barry and Rosin J. Barry, to recover for work performed pursuant to a written agreement (Ex. 2).
The agreement, signed under oath by Kevin Barry and by Davar Parvin, acting on behalf of the Parvin Group, LLC, concerned the construction of an addition to the defendants' residence located at 145 Queens Grant Road, Fairfield.
Because 145 Queens Grant Road is the defendants' residence, and the agreement concerns improvements and remodeling to the existing dwelling, the contract (Ex. 2) is subject to the provisions of the Connecticut Home Improvement Act (HIA), § 20-418, Et. Seq. (Chapter 400) of the Connecticut General Statutes.
The act provides, in § 20-429:
(a) 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 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 and completion date, and (8) is entered into by a registered salesman or registered contractor . . .
The April 6, 2004 agreement did not include a notice of the right to cancel, as required by § 20-429(a)(6) of the HIA. The act mandates that any notice of cancellation be given to the home owner at the time the contract is signed, that it be attached to the contract, and that it be written in ten-point type. The right of cancellation may be exercised prior to midnight of the third business day after the contract is signed. § 42-135a, C.G.S.
Recognizing the omission of a notice of cancellation in the agreement, Davar Parvin, on April 12, 2004, left a notice of cancellation at 145 Queens Court Road. The notice was signed by Kevin Barry on April 14, 2004 (Ex. 3), eight days after the contract was signed.
Work on the property commenced on April 15 or April 16, 2004, and continued into 2005. The defendants paid all invoices submitted by Parvin Group, LLC in a timely fashion, except the final invoice dated June 1, 2005 (Ex. 6). This invoice was an estimate of the cost to complete the work contemplated by Exhibit 2.
The final invoice followed an exchange of emails (Ex. 5), expressing disagreement concerning the work performed and the reason for any delay in completing the project as planned.
Parvin Group, LLC filed a mechanics lien on June 6, 2005 (Ex. 1). The fifth count of the complaint seeks to foreclose this lien.
The defendants have moved to discharge or reduce the mechanics lien, pursuant to § 49-35a(c) of the General Statutes. The lienor, Parvin Group, LLC, has the burden of establishing the validity of the lien, pursuant to § 49-35b of the General Statutes.
The defendants, in their motion to discharge the mechanics lien, claim: (1) there is no probable cause to sustain the validity of the lien, and/or (2) the plaintiff has failed to comply with the Home Improvement Act (HIA), and therefore cannot enforce any rights he may have under the agreement.
A hearing was conducted on August 14, 2006. The parties were given time to submit briefs following the hearing.
THERE IS PROBABLE CAUSE TO SUSTAIN THE MECHANIC LIEN
During the hearing, Davar Parvin testified that workers engaged by Parvin Group, LLC were performing services at 145 Queens Grant Road as late as March 15, 2005. He failed to produce any documentation of the work such as time cards or pay records, or any testimony from any of the individual he claimed performed the work. The defendants request that Davar Parvin's testimony not be credited, in the absence of written documentation to substantiate his claim. They point out that without Davar Parvin's testimony, the mechanics lien would have been filed more than ninety days after services or materials were provided, and would not comply with the provisions of § 49-34 of the General Statutes.
Section 49-34, C.G.S. — "A mechanics lien is not valid, unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk . . . a certificate in writing . . ."
Exhibit 5 indicates an ongoing project, and refers to additional work to be performed, and the willingness of Parvin Group, LLC to perform the work. The exhibit supports the testimony of Davar Parvin concerning unfinished work in March of 2005, and the need for workers and tradesmen to be at the 145 Queens Grant Road job site.
To sustain its burden of demonstrating probable cause for the validity of its mechanics lien, Parvin Group, LLC is not required to establish that it will ultimately prevail. It must only establish a bona fide belief in the existence of facts such that a person of ordinary prudence and judgment would entertain the belief. Ledgebrook Condominium Assn, Inc. v. Lusk Corporation, 172 Conn. 577, 584 (1977). Probable cause is flexible, employing a common sense standard which requires a court to determine probable success. Pero Building Co. v. Smith, 6 Conn.App. 180, 183 (1986).
Evaluated by that standard, it is found that probable cause exists to believe that services and/or materials were furnished within ninety days of the filing of the mechanics lien by the plaintiff, Parvin Group, LLC.
FAILURE TO COMPLY WITH THE HOME IMPROVEMENT ACT (HIA) DOES NOT NECESSARILY DEFEAT THE MECHANICS LIEN AS TO THE DEFENDANT KEVIN BARRY
The defendants contend that the contract, Exhibit 2, is unenforceable, in that it does not comply with the mandates of § 20-429 of the General Statutes. Because the proported notice of cancellation was not given to the homeowner when the contract was signed, but was instead left at the defendants' property on April 12, 2004, and signed by the defendant Kevin Barry on April 14, 2004, they maintain that the contract is unenforceable, and the mechanics lien must fail.
Since the plaintiff is a registered home improvement contractor who failed to comply with the notice of cancellation requirements, they insist that the mechanics lien must be discharged.
The Home Improvement Act (HIA) is a consumer protection statute, and is not governed by the rule that statutes in derogation of the common law must be strictly construed. Rhodes v. Hartford, 201 Conn. 89, 95 (1986). It was enacted for the benefit of the public, and a contract must comply with the statutory requirements of § 20-429 of the General Statutes, in order to be valid. Caulkins v. Petrillo, 200 Conn. 713, 720 (1986); Barrett Builders v. Miller, 215 Conn. 316, 323 (1990).
The provisions of § 20-429 are mandatory, and a plaintiff will not be relieved of compliance by asserting a theory of recovery in either implied contract, or quasi-contract. Liljendahl Bros. v. Grigsby, 215 Conn. 345, 349 (1990).
In this case, it is evident that the plaintiff, Parvin Group, LLC, failed to comply with the provisions of the Home Improvement Act. The notice of the right to cancel was not contained in the contract, and was provided after the contract was signed. Furthermore, it did not contain ten-point bold face type (Ex. 3) as required by the Home Solicitation Sales Act, § 42-135a(1) of the General Statutes.
Therefore, if the defendants are to be precluded from enforcing the mandatory provisions of the Home Improvement Act (HIA), and compelling the discharging of the mechanics lien, the plaintiff must make some showing that the defendants either acted in bad faith, or knowingly waived their right to use the HIA as a defense to an action by the plaintiff. Barrett Builders v. Miller, supra, 328.
Every contract contains a covenant of good faith and fair dealing which requires that neither party do anything that will injure the right of the other to receive the benefits of the agreement. The law does not permit a contract to be repudiated in bad faith, where repudiation would work an injustice. Habetz v. Condon, 224 Conn. 231, 238 (1992); Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572 (1984).
Bad faith involves more than mere negligence or inadvertence, but involves a dishonest purpose. Funding Consultants, Inc. v. Aetna Casualty Surety Co., 187 Conn. 637, 644 (1982). A home improvement contractor, suing for breach of a contract that violates § 20-429, CGS, can avoid the bar to his cause of action, by proving that the homeowner invoked, in bad faith, the statutory violation as a basis for repudiation. A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 340 (1990); Sidnvay v. DeVries, 215 Conn. 350, 354 (1990).
Bad faith, or improper motive, represents a question of fact. Warner v. Konover, 210 Conn. 150, 156 (1989).
Based upon the facts presented, no claim of bad faith can be sustained against the defendant Rosin Barry. She did not sign the notice of cancellation (Ex. 3), or the contract (Ex. 2). No evidence was presented at the hearing which would indicate that she knew the notice of cancellation had been delivered and signed.
As to the defendant, Kevin Barry, it is clear that he received the defective notice of cancellation and signed it. He did so one day before the actual work began on the premises, and never mentioned the notice deficiency to the plaintiff until after this action was begun by Parvin Group, LLC to enforce the agreement (Ex. 2).
A trier of fact could find, based upon the information provided to date, that Kevin Barry waited until the work was nearly complete, in order to utilize an invalid contract as a bar to the plaintiff's recovery.
In Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240 (1992), an action to enforce a mechanics lien, the contract failed to contain any notice of cancellation.
Because there was no evidence that the defendant knew of the defect in the contract, or that the defect was concealed, the court determined that no bad faith claim could be maintained. Wadia Enterprises Inc. v. Hirschfeld, supra, 250.
Here, both of the parties knew that the notice of cancellation was omitted from Exhibit 2, and the Parvin Group, LLC inartfully attempted to rectify the defect before any actual work had begun at 145 Queens Grant Road. A sufficient question concerning the good faith of the defendant Kevin Barry has therefore been raised.
In Wadia, the Supreme Court did not specifically preclude or endorse the use of "waiver" to avoid the right to rely upon the Home Improvement Act. The Court stated:
"Assuming that implied waiver may avoid the right to rely upon the statute, . . . the plaintiff would still have to make a showing that the defendants knew of their right to invalidate the contract under the act, before they could waive its protections." Wadia Enterprises, Inc., v. Hirschfeld, supra, 252.
A finding of waiver requires the defendant to relinquish a known right. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 829 (1992).
No such finding can be made as to the defendant Rosin Barry.
However, an argument concerning waiver may be advanced as to the defendant Kevin Barry, although the Parvin Group, LLC would not necessarily prevail. The issue, however, presents a question of fact based upon evidence presented at the hearing.
The motion to discharge the mechanics lien is GRANTED as to the defendant Rosin Barry.
The motion to discharge the mechanics lien is DENIED as to the defendant Kevin Barry.