Opinion
No. CV 07 5001369 S
February 6, 2008
MEMORANDUM OF DECISION
FACTS AND ISSUES
On May 9, 2007, TMC Services, Inc. ("TMC") filed a three-count complaint alleging that, in accordance with a "Master Service Agreement For Planned and Emergency Work" contract with Green Hollow Associates, LLC ("Green Hollow"), it performed services and rendered material in connection with improvements to property known as 40 Wauregan Road ("property"), located in Killingly, Connecticut. TMC alleges these "services and materials were in the nature of environmental remediation and were provided in connection with improvements to the property with the knowledge and consent of John K. Haines," the owner of the property. TMC alleges it "is due the sum of $48,891.14 for material and services rendered in connection with improvements to the property," and the sum of $55,920.86 from Green Hollow Associates, LLC, "plus interest due pursuant to the Contract." Finally, TMC alleges that it recorded a notice of mechanic's lien on February 16, 2007 and a certificate of lien on February 16, 2007 in the Killingly land records.
In his affidavit in support of his motion, Haines identifies the property as located in Danielson. It is clear from the file that the property is in Killingly.
On September 13, 2007, the defendant, John K. Haines, filed a motion to dismiss and/or dissolve the mechanic's lien and count one of the plaintiff's complaint seeking foreclosure of the lien. Haines moves to dissolve or dismiss the lien on the grounds that: 1) the lien is defective because there is no indication in the jurat that it was signed under oath; 2) the lien was not served upon him in the manner prescribed by statute, nor could the marshal who performed part of the service have attested that the copies he served were true copies of the lien; and 3) the lien does not contain a proper description of the premises. Haines moves to dismiss count one of the complaint on the ground that the lien was placed on land for improvements performed on an easement owned by a person other than the defendant, and the servient property is not liable to pay for improvements performed on an easement. In support of his motion, the defendant has submitted an affidavit written by John Haines, and a memorandum. On September 27, 2007, TMC filed an opposition, and an accompanying memorandum.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.
General Statutes § 49-35b sets forth the standards for deciding a motion to discharge a mechanic's lien. In Connecticut, the "mechanic's lien is a creature of statute and gives a right of action which did not exist at common law . . . The purpose of the mechanic's lien is 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 . . .
"Moreover, [t]he guidelines for interpreting mechanic's lien legislation are . . . well established. Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials." (Citations omitted; internal quotation marks omitted.) F.B. Mattson Co. v. Tarte, 247 Conn. 234, 237-38, 719 A.2d 1158 (1998).
"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, 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 likely true than false." (Citations omitted; internal quotation marks omitted.) 36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690, 694-95, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007).
1. Whether the lien is defective.
In his supporting memorandum, Haines argues that the mechanic's lien is defective for three reasons: 1) the lien was not given under oath; 2) the lien was not properly served upon the defendant; and 3) the description of the premises in the lien was inadequate. First, Haines argues the lien is defective because it fails to comply with General Statutes § 49-34(1)(C), which requires that the recorded certificate of mechanic's lien must be "subscribed and sworn to by the claimant." Section 49-34 provides in part: "A mechanic's lien is not valid unless the person performing the services or furnishing the materials . . . lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing . . . (C) subscribed and sworn to by the claimant . . . serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35." Haines argues that the notary "attests only that the claimant signed the document as its free act and deed," but argues that there is no jurat signed by the notary. In its reply brief, TMC argues that the lien does contain evidence of the execution of an oath on its face "because TMC Services, Inc.'s agent signed the certificate below a statement swearing to the truth of the document." A copy of the plaintiff's certificate of lien is attached to the complaint.
The Supreme Court's decision in Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 911 A.2d 300 (2006) is instructive. In Stone-Krete, the defendant argued that a mechanic's lien failed to comply with the "`subscribed and sworn to' requirements of § 49-34(1)(C) because the lien did not contain a written recital of an oath swearing to the truth of the fact contained in the lien and because the jurat executed by a commissioner of the Superior Court is not sufficient to satisfy the statute." Id., 674-75. In examining the language of the statute, the court concluded that "the term `subscribed' means that the statue requires a claimant to sign at the end of the mechanic's lien, and the phrase `sworn to' is commonly understood to mean the claimant is required to take an oath. Reading both terms together, the text of the statue therefore seems to require that the person executing a mechanic's lien: (1) sign at the end of the line; and (2) take an oath." CT Page 3282 Id., 678.
The court further reviewed the requirements for the ceremony that must accompany an oath as set forth in General Statues § 1-22, concluding that a claimant executing a mechanic's lien is required by the "subscribed and sworn to" provision of § 49-34(1)(C) to "take part in an oath ceremony in which the claimant swears to the truth of the facts set forth in the lien, and, further, that there be evidence in the lien, such as a jurat, confirming the administration of the oath by a notary public or a commissioner of the Superior Court." Stone-Krete Construction, Inc. v. Eder, supra, 280 Conn. 679. The Supreme Court specifically noted that its decision in Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 579, 620 A.2d 118 (1993) did not establish "a requirement that a mechanic's lien must contain a signed, written oath in order to be valid." Id., 682. Nor, the court noted, does § 49-34(1)(C) require an affidavit or that a written recital of the claimant's oath appear on the lien. Id. The Supreme Court found, therefore, that "on its face the mechanic's lien evidences that Tardy, the plaintiff's representative, took part in an oath ceremony conducted and administered by the plaintiff's attorney and that the plaintiff's attorney, in her capacity as a commissioner of the Superior Court, certified on the face of the lien by signing the jurat that the oath had been taken." Id., 683.
In the present case, the parties disagree as to the significance of the notary's signature on the lien. In his memorandum, Haines argues that the words "`Signed and sworn this 16th day of February, 2007' appeared above the signature of the claimant. However, there is no jurat signed by the notary." He further asserts that "[t]he language above the notary's signature reads as follows:
On the 16th day of February 2007, before me, the undersigned notary public, personally appeared Matthew C. Clark, proved to me through satisfactory evidence of identification, which were Commonwealth of Massachusetts' driver's license, to be the person whose name is signed on the presenting or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose.
"Then personally appeared the above named Matthew C. Clark and acknowledged the foregoing instrument to be his free act and deed before me." Haines argues that "[t]here is no indication in this language that the notary administered an oath."
TMC argues, however, that "evidence of the execution of an oath is included on the face of the certificate of lien. TMC Services, Inc.'s agent signed the certificate of lien below the statement `Signed and sworn this 16th day of February 2007,' such statement being acknowledged by the notary." TMC argues that their mechanic's lien "contains evidence of the administration of an oath on its face because TMC Services, Inc.'s agent signed the certificate below a statement swearing to the truth of the document."
The Stone-Krete court concluded that a claimant executing a mechanic's lien is required by the "subscribed and sworn to" provision of § 49-34(1)(C) to "take part in an oath ceremony in which the claimant swears to the truth of the facts set forth in the lien . . ." Stone-Krete Construction, Inc. v. Eder, supra, 280 Conn. 679. The attestation clause above the notary's signature clarifies what the claimant swore to in the oath administered by the notary, and subsequently validated with a signature, including that the claimant signed the lien "voluntarily for its stated purpose" and had acknowledged the lien "to be his free act and deed before" the notary. This is sufficient evidence that an oath was administered by the notary, and, therefore, the lien comports with § 49-34(1)(C). See also McDonough v. Collender, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001213 (August 8, 2007, Jennings, J.) ( 44 Conn. L. Rptr. 209).
"Several Superior Court judges have held that where a mechanic's lien contains the claimant's signature followed by a commissioner's attestation clause and there is no evidence indicating that an oath was not taken, the lien complies with the `sworn to' requirement in § 49-34(1)(C). Jackson v. Fortunato, Superior Court, judicial district of Stamford, Docket No. CV 88 0096695 (April 11, 1996, Tobin, J.)]; see Technico-Op v. Alvin Construction Co., Superior Court, judicial district of Fairfield, Docket No. FBT 0321181 (May 22, 1995, Levin, J.); Brass City Concrete v. New Waterbury, Ltd, Superior Court, judicial district of Waterbury, Docket No. 097468 (October 28, 1993, Pellegrino, J.) ( 10 Conn. L. Rptr. 339, 8 C.S.C.R. 1208) (holding that the critical factor in Red Rooster was the notary's testimony that no oath ceremony was performed)" Steve Dean Excavating v. Rozbicki, Superior Court, judicial district of Litchfield, Docket No. CV 01 0086012 (August 31, 2004, Bozzuto, J.) ( 37 Conn. L. Rptr. 766).
Haines next argues that the lien was not properly served upon the defendant because "both the lien and the notice contain statements to the effect that they were served by Robert J. Badzmierowski, the Manager for Legal and Business Affairs for the plaintiff," and, therefore, they were not served by an indifferent person as required under General Statutes §§ 49-34 and 49-35. Haines argues that Badzmierowski "mailed the lien to the defendant's business address," while the marshal "served the defendant at his home." Further, Haines argues that only Badzmierowski, not the marshal, attested that the liens were true copies. TMC argues that it actually "exceeded the statutory minimum by choosing to personally deliver notice of the Mechanic's Lien," that the marshal who served notice upon the defendant did attest to the truthfulness of the copies of the liens, and that, therefore, the lien was properly served.
General Statutes § 49-34 provides in part: "A mechanic's lien is not valid unless the person performing the services or furnishing the materials . . . (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35."
General Statutes § 49-35(a) provides in relevant part: "No person other than the original contractor for . . . the site development . . . or a subcontractor whose contract with the original contractor is in writing and has been assented to in writing by the other party to the original contract, is entitled to claim any such mechanic's lien, unless, after commencing, and not later than ninety days after ceasing, to furnish materials or render services for such construction, raising, removal or repairing, such person gives written notice to the owner of the building, lot or plot of land and to the original contractor that he or she has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on the building, lot or plot of land . . . The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which . . . the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, state marshal or other proper officer, by leaving with such owner or original contractor or at such owner's or the original contractor's usual place of abode a true and attested copy thereof."
According to Haines' affidavit, submitted with his motion, his residence is located at 240 Liberty Highway, Putnam, Connecticut. Haines further attests that he was "personally served with a copy of the Mechanic's lien and Notice of Intention to file a Mechanic's Lien by a marshal" at his residence, but that he was "not served either document by certified mail" at his residence. The property in question is located at 40 Wauregan Road, in Killingly, Connecticut. According to the certificate of delivery on the Notice of Intent to File Subcontractor's Lien, a state marshal delivered a true and correct copy of the notice to "the owner or original contractor at his usual place of abode or usual place of business abode." The fact that the marshal served Haines at his abode, then, is uncontested. The issue remains, however, whether such service is proscribed by § 49-35.
"`In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . .' General Statutes § 1-1(a). Our Supreme Court has consistently held that may is directory rather than mandatory . . . The word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion . . . The use of the word shall by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive . . . The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings." (Citations omitted; emphasis added; internal quotation marks omitted.) CT Page 3285 Robinson v. Robinson, 86 Conn.App. 719, 725, 862 A.2d 326 (2004).
General Statues § 49-35 first mandates that the contractor provide personal service when the owner resides within the same town as the property: "The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which" the property is located. (Emphasis added.) However, the statute does provide alternative instructions for service of process upon the owner or original contractor when they do not reside in the same town as the property or lot being improved. The statute provides that in such circumstance, "the notice be so served upon the agent, otherwise it may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides." (Emphasis added.) The use of the term "may" suggests that the legislators intended for certified mail service to be an option for the contractor, a convenient alternative to personal service. In no way can the statute be read to mandate only certified mail service for out-of-town property owners, nor can the statute be read to foreclose personal service of process. The state marshal's service of notice was in compliance with § 49-35.
Additionally, "[t]he fact that the defendant received actual notice of this action weighs heavily in favor of the plaintiff; the defendant cannot be heard to say that he was prejudiced in any manner whatsoever. As an exception to the general rule requiring strict construction of statutes in derogation of the common law, it has been held that provisions for substituted service should be liberally construed in those cases in which the defendant received actual notice." Plonski v. Halloran, 36 Conn.Sup. 335, 337, 420 A.2d 117 (1980). According to Haines' own affidavit, he was "personally served with a copy of the Mechanic's lien and Notice of Intention to file a Mechanic's Lien by a marshal" at his residence.
It is not necessary to address whether Badzmierowski was an indifferent person under the statutes as the marshal's service of notice was in compliance with § 49-35. Further, the marshal attests in the certificate of delivery on the Notice of Intent to File Subcontractor's Lien, that he "delivered a true and correct copy" of the notice. "[T]he marshal's return is prima facie evidence that service was made and that there is a presumption of truth afforded to the statements in the return." CAVC of Colorado, LLC v. Corda, Superior Court, judicial district of New Haven, Docket No. CV 05 4016053 (December 16, 2005, Pittman, J.) ( 40 Conn. L. Rptr. 141). It is therefore submitted that the marshal delivered a true and correct copy of the notice.
Finally, Haines argues that the inadequate description of the premises invalidates the lien. He argues that the description, "real property described as 40 Wauregan Road (a/k/a Rt. 12 and a/k/a Dyer Street), Killingly (Danielson), State of Connecticut," is insufficient under § 49-34 because it "is not a clear description precisely indicating the property on which the plaintiff has placed a lien" and "it is unclear whether the lien encompasses the property, the easement or both." TMC argues "that the lien is filed on the entire estate, inclusive of its easement appurtenant," because "a mechanic's lien cannot be enforced against an easement appurtenant independent of the land to which it is appurtenant."
General Statues § 49-34 provides in relevant part: "A mechanic's 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 of the town . . . 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, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials . . .
In Harkins v. Girouard Estates, Inc., 31 Conn.App. 485, 486, 625 A.2d 1388, cert. denied, 227 Conn. 906, 632 A.2d 691 (1993), the plaintiff sought to foreclose a mortgage he held on five subdivision lots. Darien Asphalt Paving, Inc. and Darien Asphalt Paving, Inc. doing business as F.G.B. Paving and Excavating Company ("Darien") were permitted to intervene as defendants "by virtue of their allegation that a mechanic's lien they held on the rights of access to the five lots had priority over the plaintiff's mortgage." Id. Along with the mortgage on the five lots, the plaintiff was explicitly granted the "right to pass and repass the roadways." (Internal quotation marks omitted.) Id., 487. In granting a judgment of strict foreclosure in favor of the plaintiff, the trial court found that "while the mortgage deed makes specific reference to the rights of access in which Darien claimed an interest, `there is no such provision in the mechanic's lien.' Rather, the lien appeared `to have been filed on the whole subdivision with certain lots including those covered by the mortgage excluded.'" Id., 487-88. Darien then appealed from the trial court's judgment finding that the mechanic's lien "does not encompass the property covered by the mortgage and, therefore, has no priority over it." Id., 486. Darien claimed that the trial court "improperly extended the scope of its foreclosure judgment of strict foreclosure to include property interests either not mortgaged to the plaintiff or not included in the plaintiff's lis pendens." Id. It claimed that "the plaintiff is only entitled to foreclose the five lots specifically described in the mortgage deed and the lis pendens," and that although the five lots were "explicitly excepted from its mechanic's lien, the rights of access to the lots were not so excepted." Id., 488. Darien argued, therefore, that in granting strict foreclosure over "ways of access or over the roads themselves," the trial court failed to recognize its "priority as to the roads and access and easements." (Internal quotation marks omitted.) Id.
The Appellate Court disagreed, noting that the general rule is that "`[t]he real property against which a mechanic's lien may be enforced is any property which can be assigned, transferred, mortgaged, or sold under execution as a separate and distinct entity.' 53 Am.Jur.2d 777, Mechanics' Liens § 252 (1970). Rights of access to subdivision roadways fall into none of these categories. By explicitly excluding the five lots, Darien removed both the lots and any rights of access appurtenant to them from the scope of its lien. Those access rights, if they existed at all, were not independently lienable." Harkins v. Girouard Estates, Inc., supra, 31 Conn.App. 494-95. The court wrote that "[r]ights of access are, by nature, easements appurtenant to the land. [A]n easement appurtenant . . . attaches to the land and every part of it . . . An easement appurtenant lives with the land. It is a parasite which cannot exist without a particular parcel of realty. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed . . . [An easement appurtenant] inheres in the land and cannot exist separate from it nor can it be converted into an easement in gross . . . An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant . . . Further, because of the incorporeal nature of an easement appurtenant, its owner cannot be disseized or otherwise ousted of it; he can only be disturbed or obstructed in its enjoyment." (Citations omitted; internal quotation marks omitted.) Id., 495.
The court determined that the access rights the plaintiff had were appurtenant to his five lots. Harkins v. Girouard Estates, Inc., supra, 31 Conn.App. 495. The court did not decide whether the plaintiff had "an express right to pass and repass the subdivision roads by virtue of the quitclaim deed . . . or an implied easement over the roads by reference to maps, or an implied easement of necessity," noting that "[i]n any case, such an easement cannot be not subject to a mechanic's lien independent of a lien on the land to which it is appurtenant." Id., 495-96.
In the present case, in order to file a lien against an easement appurtenant, it was necessary for TMC to file the lien on the entire property. The description "40 Wauregan Road (a/k/a Rt. 12 and a/k/a Dyer Street), Killingly (Danielson), State of Connecticut," is, therefore, an adequate description of the premises and does not invalidate the lien.
2. Whether a mechanic's lien may be attached to a servient estate.
In support of his motion to dismiss and/or dissolve the mechanic's lien, Haines further argues that since the mechanic's lien was placed on the servient estate, where the improvements benefit "the developer whose property's value was enhanced by the construction of the water main," that it would be "unjust to expose the defendant to a mechanic's lien when he has received no benefit from the improvements that were made." TMC argues that "both Haines and Green Hollow, LLC benefit from the improvement provided by TMC Services, Inc.'s remediation work" and, therefore, "both parties are responsible for the reasonable costs of said services in connection with the Easement Area."
On September 6, 2006, according to the copy of the "Utility Easement" Haines submitted along with his reply to TMC's objection, Haines conveyed to Green Hollow the easement in question, granting it, its successors and assigns, the right "to enter said premises for purposes of installing, maintaining, replacing and repairing utilities within the described easement." The easement further reads: "Grantor does hereby covenant with the said Grantee, its successors and assigns, that he has full power and authority to grant and convey the above described utility easement in manner and form aforesaid . . ."
Thus, TMC has an "express easement" over Haines' property. "[A]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." (Internal quotation marks omitted.) II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 528, 757 A.2d 1103 (2000). "[T]he beneficiary of an easement [can] make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose." Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 831, 717 A.2d 1232 (1998), quoting Restatement (Third), Property (Servitudes) (Tentative Draft No. 4) (1994) (officially adopted 1998) § 4.10. "The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit . . ." (Internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987). "The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it." (Internal quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982).
In the present case, Haines avers that he derived no benefit from the improvements made to the easement he conveyed to Green Hollow, nor, indirectly, from the services provided by TMC under its contract with Green Hollow. He further asserts that he was not a party to the contract between TMC and Green Hollow. The case of Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn.App. 352, 849 A.2d 922 (2004) is instructive. In Connecticut Carpenters, the court determined that "General Statutes § 49-33 establishes a lien in favor of subcontractors `by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected . . .' It is well established that [i]t is not necessary to their lien status that [a subcontractor] have any direct contractual relationship either with the owner or with the general contractor . . . All that is necessary is that the defendant consented to have a building erected on its property and that the lien was for materials or services provided in the erection of said building." (Citation omitted; internal quotation marks omitted.) Id., 362. In the present case, there is no evidence of a direct contract between Green Hollow and Haines regarding the improvements. Further, the parties dispute whether Haines consented to Green Hollow's improvements of the easement area, or of Green Hollow's contract with TMC.
While a subcontractor need not have a direct contractual relationship with the owner in order to pursue the foreclosure of a mechanic's lien, it is necessary, under § 49-33, for the owner to have consented to the work. See Hall v. Peacock Fixture Electric Co., 193 Conn. 290, 296-97, 475 A.2d 1100 (1984). This consent is of considerable importance, given the Supreme Court's determination that "[n]o mechanic's lien may exceed the price which the owner has agreed to pay for the building being erected or improved, and the owner is entitled, furthermore, to credit for payments made in good faith to the original contractor before receipt of notice of such a lien or liens." Seaman v. Climate Control Corp., 181 Conn. 592, 596, 436 A.2d 271 (1980). "Under Connecticut law, a subcontractor's right to enforce a mechanic's lien against a property owner is based on the doctrine of subrogation . . . The theory of subrogation allows the [subcontractor] to recover only to the extent the general contractor could recover from the [homeowner]." (Citation omitted.) W.G. Glenney Co. v. Bianco, 27 Conn.App. 199, 201, 604 A.2d 1345 (1992); see also Banka v. Call Peter, Inc., Superior Court, judicial district of Tolland, Docket No. FST CV 06 5002656 (June 26, 2007, Nadeau, J.).
Because there is a dispute in the present case as to whether Haines consented to the work Green Hollow performed, the court does not reach the question of the requirement of a benefit to Haines. The court denies Haines' motion to dismiss and/or dissolve.