Opinion
LLICV196020800S
04-04-2019
Linda TANIUS v. VILLWELL BUILDERS, LLC
UNPUBLISHED OPINION
Shaban, J.
PROCEDURAL HISTORY AND FACTS
The plaintiff, Linda Tanuis, has brought an application to discharge a mechanic’s lien (#100.31) filed by the defendant against property in which she has an ownership interest at 503 Hard Hill Road South in Bethlehem, Connecticut. The lien filed by the defendant claims that $ 8, 126.25 remains due and owing from the plaintiff for services and materials provided to her. The plaintiff contends that the lien must be discharged as the written agreement entered into between the parties fails to comply with the Home Improvement Act (HIA), General Statutes, § 20-418 et seq. The matter was heard by the court on February 11, 2019 and post-hearing briefs were submitted by the defendant (#104) and the plaintiff (#105).
At the hearing, the court heard testimony from the plaintiff and John Izzi, an employee of the defendant. The court finds the testimony of both parties credible. From that testimony, and the exhibits entered into evidence, the court finds the following facts. On September 14, 2018, the parties entered into a written agreement for services and materials to be provided by the defendant to replace the roof on both the plaintiff’s house and garage at her property. Pl. Ex. 3. The work done by the defendant was performed between September 27, 2018 and October 5, 2018. The lien was filed by the defendant on December 14, 2018 claiming an amount due of $ 8, 126.25. The agreement between the parties called for payment of $ 19, 152 and itemized the work to be done which involved replacing the roof on both structures with asphalt shingles. However, it appeared that additional plywood would be needed and a notation "* adding 35 sheets of plywood $ 3, 000" was placed on the agreement. Id. The document did not reflect any additional total due other than the $ 19, 152 originally referenced. That provision was initialed by the plaintiff but not the defendant.
The agreement did not set any specific start date for the work. A blank space on the form for the entry of a start date was left blank. The only reference to a completion date read that "... work shall be completed by within 30 days, so long as there are no delays due to receipt of materials, labor men, service suppliers and/or acts of God." Id. The defendant acknowledged that there were no specific start or completion dates set forth in the agreement. Evidence was presented that the defendant did have a home improvement contractor registration number. Def. Ex. A. However, the registration number did not appear on the agreement.
The agreement did contain a reference to the right of the plaintiff to cancel the contract following signing. "The Owner [plaintiff] has the right to rescind this Contract within THREE (3) business days according to the Connecticut General Statues from the date we sign this Contract." Pl. Ex. 3. However, there was no separate page for the plaintiff to sign through which she could provide notice of rescission to the defendant if she elected to cancel. At the time of the execution of the agreement, the plaintiff was not aware of the provisions of the HIA.
Following the execution of the agreement, the defendant did not immediately begin work as there were prolonged delays due to the weather. Once work began, it was discovered that additional plywood would be needed for the job, particularly with respect to the garage which the defendant had not been able to fully inspect prior to the commencement of the work. The defendant advised the plaintiff that this additional plywood would be needed both orally and by text message. Def. Ex. B. The plaintiff never objected to the ordering of the additional materials nor did she tell the defendant to cease work at any time. In fact, the defendant regularly kept the plaintiff updated as to the progress of the job through photos that were taken and sent to her by text. The plaintiff was generally pleased with the work. Despite the need for the additional materials, no amendment to the agreement was ever executed by the parties.
Following the completion of the work, the defendant billed the plaintiff $ 8, 126.25 for the extra cost of the additional plywood. The defendant acknowledged this was in addition to the original amount set out in the agreement. The plaintiff assumed, at the time of the signing of the agreement, that whatever materials or work were needed to complete the job were accounted for in the agreement. The plaintiff paid the defendant $ 9, 576.25 upon signing as called for by the agreement with the balance to be paid upon completion. Pl. Ex. 2. To this end, the plaintiff paid $ 10, 000 on October 4, 2018. Pl. Ex. 1. This payment was made by check at the property site and at that time, there was no conversation with the defendant about any additional sums being due nor were any additional documents presented for amendment of the agreement. The plaintiff then considered the debt to have been paid in full.
The agreement called for a payment of $ 9, 576.25 upon completion of the job. It was not clear from the testimony what accounted for the excess amount paid by the plaintiff. However, that information is not necessary to resolve the issue before the court.
STATEMENT OF LAW
Persons entitled to claim a mechanic’s lien are those who have provided "services" or "materials" in connection with the "construction, raising, removal or repairs of any building ..." General Statutes § 49-33(a). The mechanic’s lien is a creature of statute that is "designed to furnish security for a contractor’s labor and materials" but is not designed to provide "a security interest for a builder’s expectation of profit or other contract measure of damages." (Internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 184-85, 942 A.2d 1028 (2008). The owner of the property upon which improvement is made must have consented to the services having been rendered. § 49-33(a). "The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor ... Although an express contract is not necessary for such a consent, the services must be furnished under circumstances indicating an implied contract by the owner to pay for them." (Citation omitted; internal quotation marks omitted.) Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591, 620 A.2d 127 (1993).
The owner of the property upon which the mechanic’s lien was filed may apply to have the lien discharged. General Statutes § 49-35a. The lienor must first prove that there is probable cause to establish the validity of the lien. General Statutes § 49-35b(a). "The legal idea of probable cause is the 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, prudence and judgment, under the circumstances in entertaining it." (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008). Once the lienor has established probable cause as to the lien’s validity, the owner of the property, which the lien has attached to, must prove by clear and convincing evidence that the validity of the lien should not be sustained. § 49-35b(a). Should the owner meet her burden, the court has the authority to order the lien discharged, reduce the amount of the lien or substitute a bond in place of the lien in an amount deemed appropriate for the protection of the lienor. General Statutes § 49-35b(b).
The work done by the defendant upon the property constituted a home improvement and as such falls within the ambit of the HIA. General Statutes § 20-429(a)(1)(A) provides: "No home improvement contract shall be valid or enforceable against an owner unless it: (i) is in writing, (ii) is signed by the owner and the contractor, (iii) contains the entire agreement between the owner and the contractor, (iv) contains the date of the transaction, (v) contains the name and address of the contractor and the contractor’s registration number, (vi) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (vii) contains a starting date and completion date, (viii) is entered into by a registered salesman or registered contractor, and (ix) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years." (Footnotes altered.)
A "home improvement contract" is "an agreement between a contractor and an owner for the performance of a home improvement." General Statutes § 20-419(5). To be valid and enforceable, a home improvement contract must be entered into by a registered salesman or contractor. § 20-429(a)(1)(A)(viii). In order to be a registered salesmen or contractor one must "first [obtain] a certificate of registration from the commissioner as provided in this chapter ..." General Statutes § 20-420. "Home improvement" is defined to include, but is not limited to: "the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation ... of roofs ... or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property ..." (Emphasis added.) § 20-419(4).
"Owner" is defined, in relevant part, to mean "a person who owns or resides in a private residence and includes any agent thereof ..." § 20-419(6).
"Contractor" is defined, in relevant part, to mean "any person who owns and operates a home improvement business or who undertakes, or offers to undertake or agrees to perform any home improvement." § 20-419(3).
Nothing, however, precludes "a contractor who has complied with subparagraphs (A)(i), (ii), (vi), (vii) and (viii) of subdivision (1) of subsection (A) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery." § 20-429(f).
"[The] Connecticut Supreme Court has continually held that, absent proof of bad faith on the part of the homeowner, a home improvement contractor who fails to materially comply with the [HIA]’s requirements cannot recover on theories of waiver, estoppel, consent, the full performance doctrine, quasi-contract, quantum meruit, unjust enrichment or contract implied in law." John Geiger & Associates, LLC v. Vitale, Superior Court, judicial district of Danbury, Docket No. CV-01-0341703 (September 12, 2003, Upson, J.). "[B]ad faith in general implies [either] actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive ... Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) Burns v. Adler, 325 Conn. 14, 34-35, 155 A.3d 1223 (2017).
In Caulkins v. Petrillo, 200 Conn. 713, 714, 513 A.2d 43 (1986), a contractor and two homeowners entered into a signed, written agreement where the contractor would furnish materials and remodel and renovate the owners’ home for an estimated cost of $ 84, 687.41. The contractor later submitted a revised proposal to the owners indicating that the actual cost would exceed the original price, calculated to be $ 117, 470.57 due to the owners’ requests for additional items. Id., 715. After the contractor completed the work, the owners paid $ 107, 000 but still owed the contractor $ 10, 057.80 who filed a mechanic’s lien on the owners’ property. Id. The contractor sought to foreclose on the lien but the owners filed a motion to strike the complaint for failure to state a cause of action on the ground that the lien was invalid because the contract between the contractor and owners failed to comply with the HIA, which the court granted and the contractor appealed. Id. The Supreme Court affirmed the striking of the complaint. Id., 720. It reasoned that the language of the HIA and the legislative history relating to the act, "makes no express or implied mention of an exception to the writing requirement for contracts which have been partly or fully performed by the contractor ... [T]he statute would be undermined if th[e] court[s] were to permit a contractor to enforce an oral contract on the grounds claimed." Id.
Neither the Supreme nor the Appellate Court has expressly considered the question of whether an owner can discharge a mechanic’s lien on the ground that the contract under which the work was done fails to comply with the HIA. Several trial court decisions, however, have relied upon Caulkins v. Petrillo to entertain an owner’s application to discharge a lien as invalid because the underlying agreement failed to comply with the requirements of the HIA. Marrone v. Final Liquid Coating, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-08-5011868-S (March 4, 2009, Brunetti, J.) (mechanic’s lien held valid but amount reduced); Savrine v. Altek Builders, LLC, Superior Court, judicial district of Windham, Docket No. CV-07-5001161 (June 4, 2007, Booth, J.) (43 Conn.L.Rptr. 530, 531) (mechanic’s lien discharged because recovery not allowed under unjust enrichment or quantum meruit when agreement fails to comply with HIA); Bonanno v. Bolling, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4006708-S (January 30, 2006, Jennings, J.T.R.) (discharge of mechanic’s lien because written contract did not comply with HIA); Rosenoff v. Eagle’s Wing, LLC, Superior Court, judicial district of Middlesex, Docket No. CV-06-4004733 (August 24, 2006, Aurigemma, J.) (same); Newton v. Gomez, Superior Court, judicial district of Fairfield, Docket No. CV-04-0411558-S (May 26, 2004, Wolven, J.) (discharge of mechanic’s lien for noncompliance with HIA); Hinkle v. Magnanini, Superior Court, Docket No. CV-02-0512763-S (May 10, 2002, Berger, J.) (32 Conn.L.Rptr. 175, 176-77) (same); Feola v. Capitol Contractors, Inc., Superior Court, judicial district of Waterbury, Docket No. 0102719 (August 13, 1991, Barnett, J.) (4 Conn.L.Rptr. 755, 757) (same).
Other trial courts have entertained applications to discharge a mechanic’s lien without relying on Caulkins v. Petrillo, with mixed dispositions. Diamond v. Dreambuilders Construction, Inc., Superior Court, judicial district of New Haven, Docket No. CV-05-4016448-S (March 13, 2006, Lopez, J.) (denying application to discharge mechanic’s lien); O’Connell v. A. Miranda Contracting Corp., Superior Court, Docket No. CV- 02-0192282 (November 27, 2002, Adams, J.) (considered application to discharge mechanic’s lien where contractor concede noncompliance with HIA, but marking off because owners failed to serve affidavit setting forth facts substantiating claims); Classic Windows, LLC v. Williams, Superior Court, Docket No. CV-01-0812631 (October 24, 2002, Satter, J.T.R.) (discharge of mechanic’s lien because written contract did not comply with HIA); Verrico v. Dudek, Superior Court, Docket No. CV-01-0187006 (February 15, 2002, Adams, J.) (considering application to discharge or reduce and amount of lien reduced). The court’s research, and the parties’ memoranda, fail to find any Superior Court case that has refused to consider or deny an application to discharge a mechanic’s lien on the ground that the agreement fails to comply with the HIA.
ANALYSIS
In reviewing the agreement relative to its compliance with the HIA, the court notes that the agreement is in writing, is signed by the owner and a registered contractor, and, contains the date of the transaction. As such it is in compliance with § 20-429(a)(1)(4)(i), (ii)(iv) and (viii). The written agreement did not contain any provision for the extra work or materials provided by the defendant and as such, failed to comply with subparagraph (iii). The agreement does contain the name and address of the contractor but fails to recite the contractor’s registration number as required by subparagraph (v). Also, as to subparagraph (vi), while it does make a reference to the owner having three business days to rescind the agreement, it did not have attached to it a separate notice of cancellation as specified in General Statutes § 42-135a (chapter 740). That statute requires the notice to be in boldface type with a minimum size of ten points and to substantially comply with the text set forth in the statute. As to subparagraph (vii) of the statute, it contains no specific start date or completion date as required. Finally, there is no disclosure as to whether the contractor has been a shareholder, member of a limited liability company, partner or owner of another company which has been a home improvement contractor or new home construction contractor within the last five years as required by subparagraph (ix).
General Statutes § 20-429(e) provides in relevant part: "Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract."
The court also notes that there is no credible evidence that the plaintiff engaged in bad faith with the defendant. While fully aware of all of the work that was being done, the plaintiff presumed it was encompassed within the terms of the written agreement between the parties. She credibly testified that she was unaware of the HIA at the time of the signing of the agreement. Hence, it cannot be said that she allowed work to continue in bad faith with the intent of ultimately using the statute as a shield from any further claims made by the defendant. Burns v. Adler, supra .
While a contractor is not precluded from recovery if certain subparagraphs of § 20-429(a)(1)(A) are not complied with, it is mandatory that subparagraphs (vi), (vii) and (viii) be complied with in order to do so. Failure to comply with any on those three designated subparagraphs constitute a violation of the HIA and thereby preclude recovery by a contractor. The defendant has failed to comply with subparagraphs (iii), (v), (vi), (vii) and (ix) and in so doing has failed to set forth a basis for a finding of probable cause to sustain its lien. Even if probable cause were to be found outside of the consideration of the issue of compliance with the HIA, the violation of that statute has been established by clear and convincing evidence thus precluding the defendant from recovering any of the amounts sought through the mechanic’s lien.
CONCLUSION
The application to discharge the mechanic’s lien is granted on the ground that the written agreement between the owner and the contractor underlying the materials and services provided was not in compliance with the provisions of the HIA.