Opinion
No. CV 08 5014532 S
July 21, 2008
MEMORANDUM OF DECISION APPLICATION TO DISCHARGE MECHANIC'S LIEN
The applicant, Debra A. Altemos has moved to discharge the mechanic's lien placed on real property owned by she and her husband, by the Professional Services Group, Inc. ("PSG"). The location of the subject property owned by Debra Altemos and Raymond Altemos is 43 Ann Street, Fairfield, Connecticut, where they are building a new single-family residence. At the time of the court hearing, on April 7, 2008, the new residence was approximately two-thirds completed and has not yet been issued a certificate of occupancy. At the time the mechanic's lien was filed, the applicant and her husband resided at 215 Diane Terrace, Stratford, Connecticut.
The subject mechanic's lien is dated November 26, 2007 and was recorded in the Fairfield Town Clerk's Office on November 28, 2007.
PSG is the plaintiff/owner's general contractor and claims Mr. and Mrs. Altemos owe PSG a balance due in the amount of $44,195 for general contracting services rendered. PSG has recorded a mechanic's lien upon the Fairfield Land Records, and a Connecticut state marshal certified filing said lien upon the land records. The return of service states that the marshal served the mechanic's lien on Mr. and Mrs. Altemos on November 28, 2007 at their "usual place of abode 43 Ann Street, Fairfield, Ct.," The state marshal's return is silent regarding the service of "notice of lien" upon the plaintiffs, as owners of the land although the face of the mechanic's lien states that on November 26, 2007, he gave "notice of the lien" to the plaintiffs at 43 Ann Street, Fairfield, Connecticut. The parties have presented evidence on the application to discharge the mechanic's lien and have submitted post-hearing briefs. For the reasons that follow, the mechanic's lien must be discharged.
On December 28, 2007, Raymond Altemos visited the residence that is under construction in Stratford to change locks when he discovered the mechanic's lien document. PSG claims that the state marshal had effectuated abode service on the plaintiffs on November 28, 2007 by CT Page 11925 leaving a copy of the lien at 23 Ann Street, Fairfield, Connecticut, despite the fact that the plaintiffs resided at that time at 215 Diane Terrace, Stratford, Connecticut. In support of their position, the court heard the testimony of Mr. and Mrs. Altemos, who presented copies of their motor vehicle driver licenses to support their claim that their usual place of abode was in Stratford, Connecticut and not Fairfield, Connecticut.
PSG claims there is uncontroverted notice of the lien to the plaintiffs, and there is a lack of prejudice to the plaintiffs despite their claim that they do not live at the subject Fairfield property. PSG has presented copies of property tax bills for the property at 23 Ann Street, Fairfield, Connecticut from the Fairfield Tax Collector in support of its objection to any discharge of the mechanic's lien.
The Town of Fairfield property tax bills are for the Grand Lists of October 1, 2005 and October 1, 2006.
"The standard of proof applicable in proceedings to discharge mechanic's liens is a modest one. 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." (Internal quotation marks omitted.) 36 Deforest Ave. v. Creadore, 99 Conn.App. 690, 694-95 (2007) 915 A.2d 916 (2007); Newtown Associates v. Northeast Structures, Inc., 15 Conn.App. 633, 636-37, 546 A.2d 310 (1988). "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." (Internal quotation marks omitted.) Id., 695; Cadle Co. v. Gabel, 69 Conn.App. 279, 286-87, 794 A.2d 1029 (2002).
The court is also cognizant of the remedial purpose of our mechanic's lien statutes, i.e., "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;" (internal quotation marks omitted) Id., 695; and the oft-stated directive that those provisions "should be liberally construed in order to implement [that] remedial purpose . . ." (Internal quotation marks omitted.) Id.
The right to fix a mechanic's lien is statutory. F.B. Mattson Co., Inc. v. Conrad Tarte, 247 Conn. 234, 238, 719 A.2d 1158 (1998); see also Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 550, 429 A.2d 796 CT Page 11926 (1980). "Where a particular method of serving process is pointed out by statute, that method must be followed." (Citations omitted.) Board of Education v. Local 1282, 31 Conn.App. 629, 626 A.2d 1314 (1993). "Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Citations omitted.) Id. "Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim." (Citations omitted.) H S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). The interpretation of mechanic's lien law "may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction." Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn.App. 773, 777, 724 A.2d 541 (1999); Camputaro v. Stuart Hardwood Corp., supra, 180 Conn. 551.
C.G.S. §§ 49-34 and 49-35 provide the statutory method for perfecting a mechanic's lien. They provide that the lien and notice of intent to claim a mechanic's lien are served in accordance with the requirements of § 49-35. That section provides, in relevant part: "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 building is being erected, raised, removed or repaired or 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 at such owner's or the original contractor's usual place of abode a true and attested copy thereof. If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be 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 . . ." PSG failed to comply with the service requirements of § 49-35 because it did not make service at the applicant's usual place of abode, nor did it mail the documents to the applicant at the place where she resides.
"Neither the Supreme Court nor the Appellate Court have defined `usual place of abode.' Nationwide Ins. Co. v. Comito, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0270188 (July 25, 2000, Levine, J.) [ 27 Conn. L. Rptr. 606]. However, Superior Court decisions have discussed the phrase. For example, in Lemp v. East Granby, Superior Court, judicial district of Hartford, Docket No. CV 99 0589417S (June 6, 2000, Rubinow, J.) ( 27 Conn. L. Rptr. 388), it was stated that a person's usual place of abode is the place where the person is living at the time of service. A usual abode has also been referred to as the place where the defendant would most likely have knowledge of service of process. Smith v. McKeough, Superior Court, judicial district of New London at Norwich, Docket No. 123757 (August 15, 2002, Hurley, J.T.R.). It should be noted that a usual abode need not be a person's domicile. Nationwide Ins. Co. v. Comito, supra, Superior Court, Docket No. CV 99 0270188; see also Foye v. Foye, 8 Conn.Sup. 293 (1940). Rather, an abode is similar to a residence in that a person can have more than one. Nationwide Ins. Co. v. Comito, supra, Superior Court, Docket No. CV 99 0270188 (holding that abode service can be made at a previous residence if that residence has not been abandoned); see Foye v. Foye, 8 Conn.Sup. 293 (1940); Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 190 A.2d 495 (1963); Collins v. Scholz, 34 Conn.Sup 501, 373 A.2d 200 (1976). Whether service was made at a defendant's usual place of abode is a question of fact for the court to decide based on the evidence. See Plonski v. Halloran, 36 Conn.Sup. 335, 336, 420 A.2d 117 (1980); see also Close, Jensen, Miller P.C. v. Lomangino, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 91 47550 (July 25, 1991, Klaczak, J.), aff'd, 51 Conn.App. 576, 722 A.2d 1225, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999)."
(Internal quotation marks omitted.) Northwest Bldrs. Home v. Wiener, Superior Court, judicial district of Litchfield at Litchfield, No. CV 07 5002458S (Jun. 11, 2008, Pickard, J.)
The essential facts concerning the abode and residence of Mr. and Mrs. Altemos were provided by their testimony. I find this testimony to be credible. The applicant Debra Altemos and her husband Raymond Altemos were living at 215 Diane Terrace, Stratford, Connecticut at the time the mechanic's lien was filed at the Fairfield Town Clerk and at the time that a copy of the mechanic's lien was left at 43 Ann Street, Fairfield, Connecticut by the state marshal. Mr. and Mrs. Altemos have had no other residences during this time, and they certainly never resided at the Fairfield property which is the subject of the mechanic's lien. The Premises were never occupied by anyone, nor had anyone even stayed overnight there. See Northwest Bldrs. Home v. Wiener, supra. A certificate of occupancy had not been issued by the Town of Fairfield. Mr. and Mrs. Altemos were not using the premises at their usual place of abode, when the lien and notice were left there by the State Marshal. Mr. and Mrs. Altemos took no action and never did or said anything to induce PSG to believe that the unfinished property was their usual place of abode. The first notice that Mr. and Mrs. Altemos had of the mechanic's lien was when Mr. Altemos visited the property under construction on December 28, 2007. See Id.
PSG never offered any evidence at all concerning the reason for the decision to serve the papers at the premises. The certified copies of the tax bills offered by PSG were received on April 1, 2008, twenty days after the applicant filed this subject action. There is no credible evidence that PSG relied upon these tax bills in making abode service on November 28, 2007.
The evidence is clear that 43 Ann Street was never the "residence" or "usual place of abode" for Debra Altemos and Raymond Altemos. The motion to discharge the mechanic's lien is granted for the failure of PSG to comply with the notice and service of process provisions set forth in General Statutes § 49-34 and § 49-35. "Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim." (Citations omitted.) H S Torrington Associates v. Lutz Engineering Co., supra, 185 Conn. 553.