Opinion
No. CV-09-5006672-S
September 15, 2009
MEMORANDUM OF DECISION
This is an application to discharge or reduce a mechanic's lien, brought pursuant to General Statutes § 49-35a, by the plaintiffs, Jeffrey and Cheryl Dreher. The mechanic's lien was recorded by the defendant, Thomas Botts d/b/a Botts Construction Company on February 2, 2009 on the Old Saybrook land records, in the amount of $9,500, against the premises owned by the plaintiffs located at 27 Owanceo Trail, Old Saybrook, Connecticut. The mechanic's lien arises out of a contract between the plaintiffs and the defendant for a septic system repair at the plaintiffs' property. The plaintiffs have also filed an application for dissolution of the mechanic's lien by substitution of bond. The court held a hearing on the following dates: June 29, 2009 and July 7, 14, 15 and 16, 2009. The court heard lengthy testimony from the parties and the plaintiffs' expert witness, and was presented with documentary exhibits. In addition, the court has reviewed the parties' briefs.
The defendant testified that he is a duly licensed septic system installer and that his son, Caleb Botts, was a duly licensed home improvement contractor. On or about September 3, 2008, the plaintiff hired the defendant to repair and replace a failed septic system on their property located at 27 Owaneco Trail in Old Saybrook, Connecticut. The contract provided that the defendant would repair and replace the failed septic system by replacing the tank, leaching fields and installing a single retaining wall on the south side of the property. It also included top soil to be placed over the disturbed area and included raking and seeding. The estimated cost for these services, as provided in the contract, was $25,000. The raking and seeding portion of the contract was added to the contract by the plaintiff, Jeffrey Dreher, after the contract had been signed by the defendant. The contract also provides that any legal fees incurred in the collection of the account will be charged to the owner. The defendant testified that the landscaping was not within the scope of the work.
Thereafter, the contract was amended, by way of confirming e-mails between the parties, to add a retaining wall on the west portion of the property to give stability to that area for an additional cost. Evidence submitted at the time of the hearing reflected that the repair was thought to have been completed on or about the week of October 13, 2008 with the exception of the hydro seeding. However, the defendant returned to the property on several occasions after that date up until at least December 18, 2008 to inspect and remedy problems as raised by the plaintiffs in their subsequent e-mails to the defendant. The defendant received an e-mail from the plaintiffs dated November 10, 2008, regarding "outstanding technical concerns" and seeking a "positive resolution" to those issues. On December 4, 2008, the plaintiffs continued to request that the defendant "remedy the outstanding technical issues."
The defendant also testified that on December 18, 2008, the defendant and his son spent more than half a day on the property removing soil from the pressure treated plywood under the back porch.
Under § 49-35b, the lienor, the defendant in this case, is "required to establish that there is probable cause to sustain the validity of his lien." The opponents of the lien, in this case the plaintiffs, are required 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." General Statutes § 49-35b. The defendant need not establish that he will prevail, only that there is probable cause to sustain the validity of his claim. The court's role in such a hearing is to determine probable success by weighing probabilities. Pero Building Co. v. Smith, 6 Conn.App. 180, 182-83, 504 A.2d 524 (1986), citing Ledgebrook Condominium Ass'n., Inc. v. Lusk Corporation, 172 Conn. 577, 376 A.2d 60 (1977). "The legal idea of probable cause is a bonafide 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." (Emphasis in original; internal quotation marks omitted.) New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 620, 596 A.2d 1098 (1990). "Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Citation omitted; internal quotation marks omitted.) 36 DeForest Ave., LLC v. Creadore, 99 Conn.App. 690, 694-95, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007).
Section 49-35b(b) further provides:
Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is not established; or (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of the amount.
Further, in applying § 49-35b, the court "must remain 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 lien thereon . . . and [must also consider] the oft-stated directive that those provisions should be liberally construed in order to implement [their] remedial purpose . . ." (Citation omitted; internal quotation marks omitted). 36 DeForest Ave., LLC v. Creadore, supra, 99 Conn.App. 695.
The plaintiffs in this case contend that 1) the underlying written agreement between the parties was breached by the defendant; 2) the work performed by the defendant was not performed to reasonable professional standards of similar work performed on the same geographic locale; 3) the subject lien was served and recorded beyond ninety days of substantial completion and; 4) the written agreement between the parties does not conform to the requirements of the Home Improvement Act; General Statutes § 20-419 et. seq.; and is not enforceable against the plaintiffs.
The defendant's evidence as to the work performed and the date of the substantial completion of the job is credible and, therefore, meets the probable cause standard. The court finds that the defendant has established the validity of his lien, pursuant to § 49-35b.
Probable cause having been found, the burden now shifts to the plaintiffs to prove by "clear and convincing" evidence that the mechanic's lien is invalid.
The phrase clear, substantial and convincing evidence fairly characterizes that degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilty in a criminal prosecution. In cases such as this which require such a showing of proof, the burden of persuasion is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.
(Citation omitted; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981).
Turning to the plaintiffs' claim that the subject lien was served and recorded beyond ninety days of the substantial completion of the project, General Statutes § 49-34 provides:
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 in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as 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, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (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.
"We previously have concluded that, although the general rule is that the time period for filing a certificate of mechanic's lien commences on the last date on which services were performed or materials were furnished . . . when work has been substantially completed and the contractor unreasonably has delayed final completion, the time period for filing a certificate of mechanic's lien will be computed from the date of substantial completion . . . Moreover, when an unreasonable period of time has elapsed since substantial completion of work, the performance of trivial services or the furnishing of trivial materials generally will not extend the time for filing the certificate past the date of substantial completion . . . If, however, subsequent to the date of substantial completion, trivial services or materials are provided at the request of the owner, rather than at the initiative of the contractor for the purpose of saving a lien, the furnishing of such work or material will extend the commencement of the period for filing a certificate of mechanic's lien. Nichols v. Culver, 51 Conn. 177, 183 (1883) (single day's work, rendered at the request of the owner, sufficient to extend time period); see also Martin Tire Rubber Co. v. Kelly Tire Rubber Co., 99 Conn, 396, 400, 122 A. 102 (1923); (when rendered at the request of owner, provision of trivial services and materials operates to extend date for filing certificate of mechanic's lien). Thus, in order for the date on which a contractor ceased `performing . . . services or furnishing . . . materials' within the meaning of § 49-34 to be computed as the date of substantial completion, rather than as the date on which services or materials actually were last rendered or furnished, the following conditions must be satisfied: (1) the contractor must have unreasonably delayed final completion; and (2) any services or materials rendered by the contractor subsequent to the date of substantial completion must have been furnished at the contractor's initiative, rather than at the owner's request." (Citations omitted; emphasis in original.) F.B. Mattson Co. v. Tarte, 247 Conn. 234, 239-40, 719 A.2d 1158 (1998).
In this case, the plaintiffs offered evidence to contradict the defendant's evidence that the work on the property was not completed until sometime after December 18, 2008. Specifically, the plaintiffs contend that the work performed by the defendant was substantially completed prior to October 20, 2008 as confirmed in an e-mail sent from the defendant's company. The plaintiffs further contend that any additional work done by the defendant after that date was trivial and unrelated to the work outlined in the contract and they also contend that the additional work was done by the defendant of his own volition. The plaintiffs further contend that the defendant unreasonably delayed the completion of the job by dragging out trivial tasks over the course of two months in an attempt to unreasonably delay the date of the completion in order for the defendant to file the mechanic's lien.
The court finds that work performed by the defendant after October 20, 2008 was not trivial and further, was done in response to the plaintiffs' concerns as addressed in their e-mails to the defendant. The court further finds that there was no evidence presented to support the plaintiffs' claims that the work done by the defendant after that date was for the purpose of saving the mechanic's lien. The evidence that was presented by the plaintiffs was not so weighty as to meet the clear and convincing standard of proof. Likewise, the court finds that the plaintiffs have not met their burden to prove that the defendant unreasonably delayed the final completion or that the defendant did the additional work after October 20, 2008 on his own initiative. Therefore, the court finds that the work performed by the defendant was done within the ninety-day statutory requirement for the filing of the mechanic's lien.
With regard to the plaintiffs' contention that the written agreement between the parties does not conform with the Home Improvement Act; General Statutes § 20-428(4); the court finds that the defendant held a professional license and engaged in work for which that license was granted. He is a licensed septic system installer and is, therefore, exempted from the act. The work performed by the defendant on the subject property falls within the parameters of the work usually and typically performed by the defendant, including the landscaping, seeding and the installation of the retaining walls. Further, the retaining walls were installed by a licensed home improvement contractor, Caleb Botts, under the direction of the defendant. The defendant testified that it was usual for him to perform landscaping work, including back-filling, providing top soil and hydro seeding during the usual course of his work. See Drain Doctor, Inc. v. Lyman, 115 Conn.App. 457, 973 A.2d 672 (2009) (finding that plaintiff's re-patching and re-seeding of lawn after repairing sewer line constituted work for which plumber plaintiff was licensed to do making him exempt from the Home Improvement Act). Thus, the defendant falls under the exception to the Act.
Turning to the plaintiffs' claims that the underlying written agreement between the parties was breached by the defendant and the work performed by the defendant was not performed to reasonable professional standards of similar work performed on the same geographic locale, the defendants presented credible evidence that the septic system as repaired by the defendant was inspected and a permit to discharge was issued by the Connecticut River Area Health District. The court does not find credible the evidence presented by the plaintiffs that the work performed by the defendant was not performed to reasonable professional standards and further finds that the written agreement between the parties was not breached by the defendant. The system designed, applied for and installed by the defendant resulted in a functioning septic system.
With regard to the plaintiffs' contention that no approval was given for the installation of the retaining wall on the west portion of the property, the court finds credible the defendant's testimony that the installation of the west wall was necessary because of the high water table and the level at which the tank needed to be installed. In addition, the defendant's e-mail to the plaintiffs dated September 29, 2008, confirms the installation of the west retaining wall and the additional cost of the wall in the amount of $1,627.50. The plaintiffs' e-mails of October 26, 2008, also reference the installation of the west retaining wall. Thus, the court finds that the installation of the west wall was an integral part of the repair of the septic system. The plaintiffs have not proved by clear and convincing evidence that the amount of the lien is excessive nor have they proved by clear and convincing evidence that it should be reduced, pursuant to § 49-35b. Therefore, the court finds that the amount of the lien claimed by the defendant is reasonable.
Turning to the plaintiffs' application to substitute a surety bond for the mechanic's lien, the plaintiffs filed a surety bond in the amount of $9,500. General Statutes § 49-35b(4) provides that the court may "order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount." A mechanic's lien may be dissolved with a bond with surety substituted but only if the court is satisfied that the application "in good faith" intends to contest the lien. General Statutes § 49-37(a). "[The legislative intent in enacting . . . § 49-37 was to enable the owner or other person having an interest in the property to obtain a release of the mechanic's lien so long as the lienor's rights are not thereby prejudiced. The lienor's rights are considered adequately protected if the landowner demonstrates a good-faith intention to contest the lien and substitutes a bond with surety in its place.]" Six Carpenters, Inc. v. Beach Carpenters Corp., 172 Conn. 1, 6, 372 A.2d 123 (1976). A debtor has "a constitutionally protected right to substitute a bond for a lien before there has been a judgment against him." (Emphasis in original.) Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 89-90, 438 A.2d 828 (1981). The court does not find the lien of $8,434 to be invalid or excessive, excluding cost, interests and attorneys fees; however, the court does find that plaintiffs have contested the lien in good faith.
Whether the defendant will ultimately be able to prove his case by the preponderance of the evidence at the time of trial is not before the court at this time. The defendant has sustained his "probable cause" standard and the plaintiffs have not sustained their "clear and convincing" standard that the validity of the lien should not be sustained nor that the amount of the lien is excessive and should be reduced.
Therefore, the court finds that, based on the testimony and documentary evidence presented during the hearing of this matter, there is probable cause to sustain the validity of the lien. The application to discharge or reduce the mechanic's lien is denied. The court grants the plaintiffs' application to substitute the bond in the amount of $9,500. The lien is ordered dismissed and the bond is substituted for the lien.