Opinion
No. CV 07 5009223
July 8, 2009
MEMORANDUM OF DECISION
BACKGROUND
This is an action by the plaintiff, Leonard Creadore, as set forth in his amended complaint dated October 22, 2007, seeking the payment on a bond posted in substitution of a mechanic's lien and for damages, interest, costs and other equitable relief. The complaint is set forth in two counts. Count One seeks payment on a bond which was ordered substituted for a mechanic's lien obtained by the plaintiff against the defendant and other damages. Count two seeks an award by this court for costs allegedly incurred by the plaintiff in a prior action involving the defendants' efforts to have said mechanic's lien discharged, reduced or be dissolved upon the substitution of a bond (CV05 4007379) 36 DeForest Avenue, LLC v. Leonard Creadore, Fairfield Superior Court at Bridgeport.
This action has its origins in a previous action between the parties wherein the defendants, 36 DeForest Avenue, LLC, Maria Cuttler, and Green Gross, P.C. applied for the discharge of a January 27, 2005 mechanic's lien which the plaintiff had placed on the subject premises located at 36 DeForest Avenue in the city of Bridgeport.
In that case, the trial court, on May 6, 2005, denied the relief sought in the application and the defendants herein took an appeal to the Appellate Court. On May 22, 2006, while that appeal was pending, the trial court granted an application by the defendants herein to substitute a $20,000.00 bond for the mechanic's lien and the lien was dissolved. The plaintiff herein prevailed on appeal as the decision of the trial court was affirmed on February 27, 2007. The plaintiff commenced the instant case by a complaint dated June 8, 2007 in which he sought damages, a foreclosure of the mechanic's lien, possession of the premises, interest, costs and other relief. That complaint was superceded by the plaintiff's amended complaint dated October 19, 2007 in which he now seeks damages, payment on the bond, interest, costs and other relief.
The defendant Maria Cuttler filed a counterclaim on July 6, 2007, in which she alleged that the plaintiff, at all relevant times, was acting in violation of the Home Improvement Contractors Act (HICA) and the Connecticut Unfair Trade Practices Act (CUTPA). On April 16, 2008, the remaining defendants filed an answer and a special defense alleging that the plaintiff acted in violation of HICA.
As to defendant Cuttler's counterclaim, the plaintiff has argued that she lacks the requisite standing to raise such claims for the reason that at the time of the commencement of this action, she was not the owner of the subject premises, pursuant to Norwood Dean v. CRT Construction, 2001 Conn.Super. LEXIS 2775 [ 30 Conn. L. Rptr. 454]. For the following reasons, the court did not take up the issue of Cuttler's right to raise such counterclaims.
The evidence and testimony elicited at trial permits the court to find that at all relevant times, the subject property was a commercial property and not a residential property. Both the certificate of occupancy and the zoning compliance field card on record with the City of Bridgeport describe the property as "machine shop." Although the plaintiff testified that improvements had been made by himself and Karantonis in the form of the construction of a kitchen, bathroom and bedroom area, there was no testimony that the property was or was ever intended to be a residence.
In their counterclaims and special defenses, the defendants have alleged that the plaintiff acted in violation of the Home Improvement Contractors Act (HICA). Those alleged violations are all related to construction work which he allegedly did at the subject premises and for which he is seeking to be awarded monetary damages.
Section 20-419(4), C.G.S., defines the term "home improvement." That section provides, in relevant part, "`Home Improvement' does not include . . . (c) the sale of goods or services furnished for commercial or business use or resale, provided commercial or business use does not include use as a residential rental property."
There was no evidence or testimony offered at trial which permits the court to find that the subject premises were used as a residential rental property or for any equivalent use.
For that reason, the court finds that the defendants' claims that HICA or CUTPA apply to the facts in this case are without merit. Consequently, the court further finds that the counterclaims and special defenses alleging a violation of those acts cannot be sustained.
The parties appeared for trial and evidence testimony was offered by the plaintiff only. The parties stipulated that court could consider four pages of transcript testimony by one additional witness who, due to a serious medical condition was unable to appear for the trial.
The plaintiff testified that for several years starting in 1995, he and close friend Steven Karantonis worked together on a number of construction projects. Both were licensed contractors. They usually traded or bartered the value of the services they rendered to each other's jobs and the only payment would be for out of pocket expenditures made by one for the benefit of the other for materials or equipment and, occasionally, for the cost of labor performed by sub-contractors.
Karantonis was the co-owner of the subject property located at 36 DeForest Avenue in Bridgeport. He owned it jointly with his daughter Maria Karantonis, now Maria Cuttler, one of the named defendants in this action.
Karantonis and the plaintiff agreed to renovate the one-story concrete block building into a two-story office and storage facility. They spent considerable time and effort on the project which included the addition of a bathroom, kitchen, bedroom and office space.
The plaintiff testified that neither paid the other any money for the labor that went into the project, however the plaintiff was repaid by Karantonis for money he occasionally paid to sub-contractors for certain work which the plaintiff could not do. He also paid or agreed to pay the plaintiff for out of pocket costs the plaintiff occasionally incurred for materials, equipment and sub-contractors. The plaintiff suspended his work on the project in May 2004.
In October 2004, when the project was almost completed, Karantonis collapsed at another job site and was diagnosed with terminal cancer. He died within weeks. According to the plaintiff, days before his death, Karantonis met with his brothers, the plaintiff and his daughter, Maria. At that meeting, Karantonis reportedly asked the plaintiff to return and do some additional work at the subject premises and also instructed Maria to see that the plaintiff was compensated for his work.
The plaintiff testified that on November 1, 2004, he returned to the premises and made entry with a key Karantonis has previously given him. He claims to have done work to service and winterize the heating and water systems to prevent cold weather damage to the building. He also testified that to remove a dangerous condition on the premises, he and one of the brothers filled in a large hole which had been dug adjacent to the building for water drainage. The plaintiff submitted a bill to Maria for $75.00 for filling the trench, but did not seek compensation for the work on the heat and water systems.
By agreement of the parties, the court read and considered the sworn testimony of Peter Karantonis, brother of Steven Karantonis, before Judge Dale Radcliffe on May 2, 2005. His testimony corroborates the plaintiff's claims that, at Karantonis' request, the plaintiff returned to the subject premises on October 27, 2004 to fill in the ditch and again on November 1, 2004, to work on the building's heating and water systems and that the plaintiff gained access to the building with a key.
The plaintiff also sought reimbursement for several pieces of equipment and materials which he had paid for out of his own pocket. Those bills were submitted into evidence and included one for $1,433.78 for the cost of an alarm system, another is for $9,850.00 for the purchase and installation of a four-ton high efficiency air conditioning system including chimney and duct work, and the last is for $3,778.00 for kitchen cabinets. The three bills were evidenced by plaintiff's exhibits 6, 7 and 8, respectively.
The plaintiff had testified that he did not charge Mr. Karantonis for labor except in the case of subcontractors which he hired to do work such as the duct work and chimney work in the case of the air conditioning system.
There was no evidence of testimony offered to refute the amount of each bill or the fact that they were incurred with the knowledge and consent of Karantonis and with complete expectation of reimbursement to the plaintiff.
The court finds that the plaintiff has proven, by a fair preponderance of the evidence that he is entitled to payment for the goods and services he claimed at trial.
The claim for money damages is only one aspect of the issues before the court in this case. As it is an action for payment of a bond substituted for a mechanic's lien, the court must decide if there is any merit to the defendants' claims that the plaintiff was not entitled to relief arising from the mechanic's lien or from the bond substituted for the lien because he failed to meet the statutory requirements governing mechanic's liens. Specifically, the defendants claimed that he failed to obtain the lien within ninety days after completion of his services. This issue was one of several ruled upon by the Appellate Court in the related case. That court was dealing with a different standard of proof regarding the issues on appeal — probable cause as to the facts before it. In this case, the burden upon the plaintiff is a fair preponderance of the evidence. Notwithstanding that higher standard, this court finds the facts in accordance with the Appellate Court ruling. It finds that the plaintiff filed his lien within ninety days after the completion of the work as required by § 49-34, C.G.S. It further finds that all of the work claimed by the plaintiff was part of a renovation project at the subject premises that was ongoing at the time of Karantonis' death, that the project was not substantially complete and that the lien was filed within ninety days of the final work performed, and because the project was ongoing, the filing of the lien more than ninety days after certain of the earlier work had been performed did not compel the conclusion that the lien was untimely, nor did the fact that the final services rendered were of a different nature from those previously performed. The court finds each of those issues in favor of the plaintiff.
On November 17, 2008, approximately seven months after they filed their answer and one special defense on April 16, 2008, the defendants filed a "Request to Revise" their answer and special defenses by adding as a second special defense — "Unconstitutionality of Mechanic's Lien Statutes."
On December 5, 2008, the defendants filed a "Request to Amend" their answer and special defenses by adding as a second special defense — "Unconstitutionality of Mechanic's Lien Statutes."
At the start of trial, counsel for the plaintiff represented to the court that he had never received a copy of those requests and noted that he had "closed his office" and although he arranged for mail forwarding, as of the date of trial he had not received either pleading regarding the additional special defense of unconstitutionality of the statute. The issue was not argued on the date of trial, but was referenced in the parties' post-trial briefs.
That issue was raised in the hearing before the Appellate Court. That court did not rule on that matter noting that it was not reviewable because it had been "inadequately" presented to the trial court which failed to address it in its memorandum of decision and the plaintiff in that case had not pursued a motion for articulation by the trial court judge.
This court is of like mind when it comes to the inadequate presentation of that identical issue in the instant case. There was a claim by the plaintiff herein that notice of the special defenses was not received by his office and he was unaware of the defendants' intention to proceed with that special defense right up to the very start of trial. The parties did not argue that issue at trial.
The parties each made it the subject of their post-trial briefs. Having nothing more to go on than those briefs, the court finds that the plaintiff's objection to the claim of unconstitutionality of the mechanics lien statutes has merit. The arguments of the plaintiff as set forth in his post-trial brief are adopted whole cloth by this court. Of particular import is the plaintiff's observation, supported by case law, that "the burden rests on the party asserting its invalidity to establish not only that it is unconstitutional beyond a reasonable doubt but that its effect or impact on him adversely affects a constitutionally protected right which he has." Roundhouse v. Telesco, 168 Conn. 371, 385 (1975).
As the plaintiff points out, while the Connecticut mechanic's lien statutes were declared unconstitutional in Roundhouse v. Telesco, they were thereafter revised to include, inter alia, a prompt post-seizure hearing. Having had that safeguard added, mechanic's lien statutes were, as the plaintiff notes, "favorably discussed" in Kukanskis v. Griffith, 180 Conn. 501 (1980), a case which went on to declare the then-existing lis pendens statutes to be unconstitutional. Statutes providing for prompt post-seizure hearings were also deemed to be constitutional in Williams v. Bartlett, 464 U.S. 801 (1983). The plaintiff also notes that the mechanic's lien interest is created when the very first services are rendered and/or materials delivered. § 49-33(a), C.G.S., provides, in relevant part, "If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building . . . and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected . . . the building, with the land on which it stands . . . is subject to the payment of the claim."
For the forgoing reasons, as to Count One of the amended complaint, the court enters judgment for the plaintiff and against each of the defendants. The court awards the plaintiff the amount on the bond, $20,000.00. The court also awards the plaintiff interest and his costs including attorneys fees as provided for in § 52-249a, C.G.S.
As to Count Two, the court awards the court costs incident to the foregoing proceeding and/or appeal.
The parties agreed at the time of trial that the award of attorneys fees, if any could and would be deferred until after the rendition of the judgment in this matter. For that reason, the court directs that this matter be assigned for further proceedings to determine the issue of attorneys fees.