Opinion
No. CV044001699
February 3, 2005
MEMORANDUM OF DECISION
Matthew and Tiara Calovis have filed an Application for the Discharge or Reduction of a Mechanic's Lien filed against their property, 365 Tater Hill Road, East Haddam, Connecticut (the "Property") by Hastedt Brothers, LLC.
These proceedings are governed by Connecticut General Statutes §§ 49-35a and 35b. Under § 49-35b(a) the lienor is first required to establish the existence of probable cause to sustain the validity of its lien. The property owner then has an opportunity to prove by clear and convincing evidence that "the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced."
The plaintiffs claim that 1) they had no contract with the lienor, Hastedt Brothers, LLC, 2) there is no probable cause to sustain the validity of the lien, 3) the lien is excessive, and 4) Hastedt Brothers, LLC signed a lien waiver.
After a trial the court finds that Hastedt Brothers sent a proposed contract dated August 1, 2004 to the plaintiffs and the plaintiff, Tiara Calovis, signed the contract on August 27, 2004. The contract included "Excavation," "Foundation," and "Blasting." The Excavation category included excavation of a cellar hole, installation of a footing drain, stumping the lot, excavation of the driveway, including installing a gravel base and grading, installing electric, cable and telephone conduits from the property line to the house, bringing the yard to grade, digging a well line trench, installing a septic system. The price for the foregoing items was $20,000.
Hastedt Brothers excavated the cellar hole, installed the footing drain, did not stump the lot in that there were many stumps still in the ground on the lot. Hastedt Brothers also failed to properly excavate and grade the driveway because the excavation of the driveway that was done put the driveway at one foot below grade level. Hastedt Brothers did not complete the installation of the utility conduits. Hastedt Brothers was to bring the yard to grade using existing materials. The lot had a substantial amount of topsoil. However, rather than strip off the top soil for future regrading, Hastedt Brothers mixed the top soil with blast rock and stumps such that there was no topsoil remaining and the material that was remaining could not be used for grading the property without substantial sifting of the materials to obtain the topsoil. Hastedt Brothers also failed to install the septic system.
The Foundation portion of the contract included concrete foundation and footings installed and the installation of a concrete floor in the cellar. The price for this portion of the contract was $11,500. Hastedt Brothers did install the concrete foundation, but did not install the cellar floor.
The plaintiffs gave Hastedt Brothers a $5,000 deposit on August 27, 2004. Thereafter Joseph Hastedt, who performed most of the work for Hastedt Brothers under the contract, was often absent from the job site, stating that he had another job. Joseph Hastedt seemed overwhelmed by the site work. The excavation of the site such that the blast rock, soil and other materials were all jumbled together made it difficult to clear the site so that the plaintiffs' modular home could be delivered. Sometime in September the plaintiffs had to postpone the delivery of the modular home because Hastedt Brothers had failed to make the lot sufficiently clear for such delivery.
On September 28, 2004, the plaintiffs gave Hastedt Brothers a check in the amount of $13,000. It is unclear how the parties arrived at payment in this amount, since Hastedt Brothers did not provide the plaintiffs with any invoices or record of work completed to that date.
Shortly thereafter, Joseph Hastedt became concerned that he would be unable to complete the contract for the plaintiffs in a timely manner. He asked a contractor who was working on the site next door, Mike Sanders, if he could take over Hastedt Brothers' work for the plaintiffs, telling Sanders that he had another job for which he would be penalized at the rate of $500 per day if he failed to timely complete it. Desperate to have their lot ready for the imminent delivery of their modular home, the plaintiffs agreed to allow Sanders to take over the work.
The plaintiffs proved by clear and convincing evidence that they have incurred or will incur expenses of approximately $34,000 to complete the items left under the Hastedt Brothers contract and/or to rectify the damage to the site caused by Hastedt Brothers.
Connecticut General Statutes § 49-33 provides:
(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the . . . improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner . . . of the lot being improved or by consent of the owner of the plot of land being improved or subdivided . . . the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.
Emphasis added.
The plaintiffs first argue that they did not enter into any contract with Hastedt Brothers, LLC, but instead, their contract was with Hastedt Brothers signed by Joseph Hastedt as an individual, not a member of any LLC.
Although [the mechanic's lien] legislation creates a statutory lien in derogation of the common law; Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); National Fireproofing Co. v. Huntington, 81 Conn. 632, 634, 71 A. 911 (1909); see also Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937); its remedial purpose to furnish security for a contractor's labor and materials requires a generous construction. Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954); City Lumber Co. v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775 (1945); Pierce, Butler Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934); Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327 (1900). Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, supra; City Lumber Co. v. Borsuk, supra.
Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 551, 429 A.2d 796 (1980).
[O]ur courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed. See, e.g, HS Torrington Associates v. Lutz Engineering Co., supra, 155-56 (copy of certificate served on owner by a subcontractor failed to state its intent to file a lien); Morici v. Jarvie, 137 Conn. 97, 102, 75 A.2d 47 (1950) (misstatement of amount due); Pierce, Butler Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934) (subcontractor mislabeled as contractor and agent); Burque v. Naugatuck Lumber Co., 113 Conn. 350, 353, 155 A. 414 (1931) (defect in description); Peck v. Brush, 89 Conn. 554, 556-57, 94 A. 981 (1915) (inclusion of extra land in certificate); Westland v. Goodman, 47 Conn. 83, 86 (1879) (erroneous date of completion of work). The defendant, however, has cited no Connecticut case in which a court has validated a certificate of mechanic's lien despite the clear absence of a necessary statutory element of the certificate, nor have we found such a case. J.C. Penney Props., Inc. v. Peter M. Santella Co., 210 Conn. 511, 515, 555 A.2d 990 (1989).
In J.C. Penney Props., Inc., supra, the Supreme Court held that the mechanic's lien at issue was invalid because it did not contain a written oath that it had been sworn to by the signer, even though the signer and his attorney testified that the lien had actually been signed under oath. The necessity of the lienor having a contract with the property owner is clearly a "necessary statutory element of the certificate" such that a failure to recite such contract puts this case in the category of J.C. Penney Props, Inc., supra, Stone v. Rosenfield, supra, and City Lumber Co. v. Borsuk, supra.
The plaintiffs had no contract with the lienor, made no payments to the lienor, and there was no evidence that the work performed on the Property was done by the lienor, Hastedt Brothers, LLC. Therefore, the lien is invalid.
The lien is also subject to discharge because the plaintiffs have proved by clear and convincing evidence that they have spent or will have to spend amounts in excess of $30,000 to complete the work called for under the contract with Hastedt Brothers. This amount includes work that has been necessitated by the improper performance by Hastedt Brothers like the below grade driveway and the failure to strip and segregate the top soil.
Had the entire contract been performed properly, the plaintiffs would have owed $38,617.23, composed of the contract price of $31,500 plus extras, which, according to Joseph Hastedt, were $7,117.23 when he left the job. The plaintiffs paid $18,000 to the Hastedt Brothers, leaving an amount due of $20,617.23 to complete the contract.
The plaintiffs have incurred or will incur more than $30,000 to complete the work called for under the contract or to remedy the problems caused by Hastedt Brothers in their partial performance of the contract. The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. Briggs v. Briggs, 75 Conn.App. 386, 399, 817 A.2d 112 (2003). Hastedt Brothers breached its contract with the plaintiffs because it did not complete the contract. Therefore, even if Hastedt Brothers was the lienor, there would be nothing due to it from the plaintiffs because the plaintiffs have incurred more than three times the amount of the lien in completing the contract and/or remedying the defective work of Hastedt Brothers.
For the reasons set forth above the mechanic's lien is hereby discharged.
By the court,
Aurigemma, J.