Opinion
No. CV 05-4007063-S
August 22, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S APPLICATION FOR DISCHARGE OR REDUCTION OF MECHANIC'S LIEN (NO. 101.10)
Procedural and Factual Background
This is an action for foreclosure of a mechanic's lien filed against property known as 99 Hickok Lane in New Canaan, owned by the defendant. The plaintiff is the wood-flooring subcontractor of a project consisting of a total interior renovation of the home. The general contractor was Sterling Associates, General Contractors, LLC. By its written proposal to the general contractor (Exhibit A), which was accepted, the plaintiff agreed to install new red oak hardwood flooring in several rooms throughout the home as shown on the renovation plans for $25,061.79 which covered all materials and labor. The plaintiff completed the installation and finishing of the flooring in February 2005. The plaintiff received a partial payment from the general contractor, but claims that there is an unpaid balance due in the amount of $21,659.42 and it has filed a mechanic's lien against the defendant's home in that amount. The defendant has moved pursuant to Conn. Gen. Stat. § 49-35a(c) that the lien be discharged or reduced. An evidentiary hearing on the defendant's motion was held in this Court on April 3, 2006. The parties filed post-hearing memoranda of law on April 21 and April 24, 2006.
§ 49-35a(a) authorizes the owner of the liened property to make application to the Superior Court, if no action to foreclose the lien is then pending, that a hearing be held to determine whether the lien should be discharged or reduced. If, as here, a foreclosure case has already been commenced, subsection (c) permits any party at any time prior to trial to move for a discharge or reduction of the lien.
Discussion and Findings
Under the provisions of Conn. Gen Stat. § 49-35b, ". . . the lienor [here, the plaintiff] shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under § 49-35a [here, the defendant] may appear, be heard, and 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." Under this statute it has been held that the plaintiff has the initial burden to show probable cause to sustain the validity of the lien, and then, if that burden is satisfied, the defendant has the burden of proof by clear and convincing evidence that the lien is invalid or excessive. Pomarico v. Gary Construction, Inc., 5 Conn.App. 106 (1985). The plaintiff's initial burden of probable cause is analogous to the probable cause burden of a plaintiff seeking a prejudgment remedy pursuant to Conn. Gen. Stat. § 52-278a et seq. Pero Building Company v. Smith, 6 Conn.App. 180, 182 (1986). That burden has been stated as follows: "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." Id., 6 Conn.App. at 183. It has also been held, however, that in determining whether or not the probable cause standard has been met [in a malicious prosecution context],"Mere conjecture or suspicion is insufficient . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable." (Citation omitted.) Heussner v. Day Berry Howard, LLP, 94 Conn.App. 569, 577 (2006).
The plaintiff's owner and president, James Neal, testified that the flooring was installed in about August 2004 and then, after other subcontractors had finished the interior work, the flooring was sanded and finish coats were applied in two phases ending in February 2005, and that payments in the cumulative amount of $21,659.42 due from the general contractor are delinquent because the defendant has withheld the sum of $90,000 from the general contractor. The defendant does not dispute any of the foregoing testimony by Mr. Neal.
The issue between the parties centers on the defendant's counterclaim (setoff) that "cupping" (raised edges of individual boards) had occurred prior to sanding of the flooring, which then, as the wood later acclimated after sanding, resulted in "crowning" (raised centers) of the boards, which now must be corrected by re-sanding and re-finishing with resulting shortening of the life of the flooring and consequential damages while the defendant moves all her belongings out of the house while the sanding and refinishing are done. The defendant claims that the "cupping" and resulting "crowning" were caused by the plaintiff in that it did not allow the oak flooring to acclimate to the ambient moisture at the job site before installation and did not take a moisture reading of the material before installation to confirm acclimation. This claim was supported by the defendant's expert witness Dave Barkstead who testified that cupping is always caused by a moisture imbalance between the hardwood and the sub-flooring material upon which it is to be installed, and that a period of acclimation at the job site confirmed by a moisture reading prior to installation is standard procedure. In Mr. Barkstead's opinion the installation by the plaintiff without taking a moisture reading by using a moisture meter device (which he demonstrated in court) was improper and failed to detect a moisture imbalance between the flooring material and the sub-floor resulting in the cupping which, after sanding and further acclimation, resulted in the present crowning. The plaintiff Mr. Neal testified, however, that the material had been delivered from the mill and stored at the plaintiff's warehouse in Branford for at least three or four weeks prior to delivery to the job site in New Canaan and then was stored for about two additional weeks at the site prior to installation. Although the plaintiff took no moisture readings of the material prior to installation, Mr. Neal testified based on 43 years in the hardwood flooring business and the installation of more than a thousand hardwood floors that this was more than sufficient time for the material to acclimate. He feels that two to three days at the site in normally sufficient for acclimation. Although Mr. Barkstead would not admit definitively that two weeks would be more than enough time for the oak flooring to acclimate, when asked of his opinion as to what a sufficient period of acclimation would be, he initially answered "Some say two days; some say a week." In Mr. Neal's opinion the cupping was caused by a moisture problem in the house after installation, and he points out that when he first observed some cupping on the first floor, the heating system in the house was not turned on and he directed the general contractor to turn on the heat to dissipate the moisture in the house. There was also evidence that there had been a water leak from the air conditioning system in the house which even Mr. Barkstead attributed to be the cause of the current cupping of the kitchen floor.
Based on the evidence the Court finds that the plaintiff has met its relatively low burden of showing probable cause that the flooring installation was proper and that it is owed the sum of $21,659.42, in that Mr. Neal, under the rule of the Pero Building Company case, supra, had a reasoned bona fide belief based on years of practical experience that the red oak flooring material installed in August 2004 had sufficiently acclimated to the ambient conditions at the job site even though no moisture meter reading was taken.
The Court also finds, that the defendant has not met her much higher burden of proof under § 49-35a by showing by clear and convincing evidence that the installation was defective. "Clear and convincing proof" has been defined as a degree of belief that lies between the belief that is required to prove an issue of fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. It requires "strong, positive" proof "free from doubt," and "full, clear, and decisive." (Citiation omitted.) Dacey v. Connecticut Bar Association, 170 Conn. 520, 536-37 (1976). The defendant's proof as to her counterclaim fails to measure up to that high standard. As to liability the factors would be the same as those which inclined the Court to find that the plaintiff had satisfied its burden of probable cause. The defendant's evidence of damages also fell short of the clear and convincing standard. She presented no admissible evidence of repair costs other than her own lay opinion. Nor was the Court convinced by strong positive proof free from doubt of the defendant's claim that in order to refinish the floors she must physically move all her furniture and belongings out of the house as opposed to doing the work in phases while storing furniture and possessions within the home with appropriate dust-control measures.
In summary, the Court finds the posture of the evidence to lie somewhere between the plaintiff's statutory probable cause standard and the defendant's statutory clear and convincing evidence standard, with the result that the plaintiff's mechanic's lien should remain in place until the merits of the controversy shall be decided by a trier of fact under the normal civil standard where one party or the other must prove its or her case by a simple preponderance of the evidence.
Order
For the foregoing reasons the defendant's Application for Discharge or Reduction of Mechanic's Lien is denied.
So ordered.