Opinion
No. 5004011
November 20, 2007
MEMORANDUM OF DECISION
On August 28, 2007, David Ostigny filed an application for the discharge or reduction of a mechanic's lien on property owned by David and Amy Ostigny. The lienor was alleged to be Susan F. Camp, L.S. The mechanic's lien was filed pursuant to Connecticut General Statutes § 49-33.
An evidentiary hearing was held on the application on November 7, 2007. Pursuant to the provisions of § 49-35b, the lienor was first required to establish that there was probable cause to sustain the validity of the lien. If this was done, David Ostigny, as a person entitled to be notified of the lien under § 49-35a, could be heard to prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount reduced.
From the evidence and the facts which could reasonably be deduced from such evidence, the following facts are found. The applicant, David Ostigny, is the owner of real property lying on the westerly side of Connecticut Route 49, also known as Pendleton Hill Road in the Town of North Stonington. Amy B. Ostigny also had an interest in such property. There was a house on the property.
The lienor, Susan F. Camp, is a licensed land surveyor with an office in the Town of Preston. Camp had performed prior services for Ostigny in which no problems arose.
On or about January 18, 2007, the parties met. Mr. Ostigny desired to retain the services of Ms. Camp for two specific projects. He wanted her to determine the feasibility of subdividing the property in question. He was having difficulty in getting electricity onto the property and he also wanted Camp to resolve this problem, which would entail the preparation of an easement to C.L.P.
The parties entered into an oral contract by which Camp was to perform this work. The oral contract included the hourly rates which would be charged for services. This included the basic rate of $75 per hour and a rate of $95 per hour was to be charged for field crews.
Camp prepared the work and sent Ostigny a detailed bill for such services on June 4, 2007. When the bill was questioned, an attempt was made to work the matter out. When this failed, Camp declined to perform further work and, on July 12, 2007, filed the mechanic's lien to secure a claim of $2,119.50.
There is a question as to whether § 49-33 permits a mechanic's lien to be filed by engineers or land surveyors. In Thompson Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 372 (1997), it was held that unpaid insurance premiums could not be the basis for a mechanic's lien "because such premiums have not enhanced the property in some physical manner, laid the ground work for the physical enhancement of the property or played an essential part in the scheme of physical improvement of the property, . . ." In New England Savings Bank v. Meadow Lakes Realty Company, 243 Conn. 601, 614-15 (1998), the court relied on the reasoning of Thompson Peck to uphold the validity of a mechanic's lien filed by a land surveyor where the surveyor's charges were directly associated with the physical construction or improvement of the land. See also Harvey Weber v. Pascarella Mason Street, LLC, 103 Conn.App. 710, 718 (2007).
Here, the charges were directly associated with Ostigny's effort to develop the land. The C.L.P. easement was directly associated with and essential to the improvement of the land and the existing house on the property.
It must therefore be found that there is probable cause to sustain the validity of the lien.
Mr. Ostigny introduced evidence in support of his claim that the validity of the lien should not be sustained and that it was excessive. He testified that he never authorized the surveyor to do all of the work which she did. The evidence, however, is to the contrary and that the surveyor performed the work contemplated in the oral contract. The various rates discussed, including a rate for field work, would have alerted Mr. Ostigny to the extent of the work contemplated by the agreement. Mr. Ostigny submitted, without objection, estimates from other surveyors which were much lower than the charges here. Such evidence is, however, irrelevant and has no probative value. The issue here is the agreement which the parties had and the work done pursuant to that agreement.
Mr. Ostigny testified that the C.L.P. easement was not acceptable. The evidence indicates that in accordance with the agreement, the developer worked on the project, met with a representative of C.L.P. and prepared a draft of the easement plan which would have been acceptable with a minor adjustment. The adjustment was merely the shading in of the area of the easement on the plan. When Mr. Ostigny refused payment of the bill for the surveyor's services, she declined to do further work. Under such circumstances, Mr. Ostigny cannot complain about the status of the C.L.P. easement.
Considering all of the evidence, it must be found that Mr. Ostigny has failed to prove by clear and convincing evidence that the validity of the lien should not be sustained or that it should be reduced.
Accordingly, the application is denied.