Opinion
No. CV 06 4004733
August 24, 2006
MEMORANDUM OF DECISION
The plaintiffs, Herbert and Barbara Rosenoff, have brought this action to discharge or reduce a mechanic's lien filed by the defendant, Eagle's Wing, LLC. After a hearing the court finds the following facts.
The plaintiff's own real property improved with a residence located at 392 Roast Meat Hill Road in Killingworth, Connecticut ("the Property"). The defendant, Eagle's Wing, LLC, is a Connecticut limited liability company with a principal place of business in Old Saybrook, Connecticut. The defendant, George MacLauchlan, is the sole member of Eagle's Wing, LLC. Eagle's Wing, LLC is registered as a home improvement contractor pursuant to the Connecticut Home Improvement Act.
In the spring of 2005 the plaintiffs hired the defendant to act as a general contractor for certain work to be performed at the Property. The work included removal of a balcony, converting two small bathrooms into one and a closet, replacing four windows, finishing the walls of the upstairs area, replacement of a stairway and installation of hardwood floors, installation of a new roof and construction of a dog run.
MacLauchlan verbally advised the plaintiffs that the work they requested would cost approximately $30,000. There was no written contract between the parties.
The defendant acted as a general contractor on the premises, hired subcontractors and paid them with money paid to him by the plaintiffs. The plaintiffs ultimately paid approximately $64,500 to the defendant for the work.
On November 3, 2005 the defendant filed a mechanic's lien against the property of the plaintiffs in the amount of $16,623.81. The plaintiffs contend that there is no amount owed to the defendant.
The defendant has claimed that it was not the general contractor, but merely a subcontractor. The court does not find this to be credible. By his own admission, MacLaughlan received money from the plaintiffs which he paid to subcontractors. In addition, the final bill from the defendant dated June 30, 2005 contains several references to a 12.5% and a 12% "GC" fee. MacLauchlan testified that GC used in that context stood for "George's Commission." That testimony was not credible. The GC fee in the bill referred to the "general contractor's" fee.
The court votes that the date on which the lien was filed, November 5, 2005, was more than ninety days after the date of the final bill. If the final bill was generated on or after the date on which the work was completed, then the lien is invalid for failing to comply with the time limitations in Connecticut General statutes 49-34. However, this issue was not raised by either party.
The plaintiffs argue that the lien must be discharged because the underlying contract between the parties does not comply with the Connecticut Home Improvement Act in that it was not in writing.
The Connecticut Home Improvement Act, Connecticut General Statutes §§ 20-418 through 20-432 (HIA), contains the following definitions pertinent to this case:
"Contractor" means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement.
"Home improvement" includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, . . .
"Home improvement contract" means an agreement between a contractor and an owner for the performance of a home improvement.
"Owner" means a person who owns or resides in a private residence and includes any agent thereof. An owner of a private residence shall not be required to reside in such residence to be deemed an owner under this subdivision.
"Person" means an individual, partnership, limited liability company or corporation.
Connecticut General Statutes § 20-419.
The defendant was a contractor who undertook to perform a home improvement on a single family residence. The HIA clearly applies to the circumstances of this case.
The portion of the HIA which is dispositive of this case is § 20-429(a), which provides:
(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.
In Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986), the Supreme Court considered the foreclosure of a mechanic's lien which had been filed for materials and labor supplied in the renovation of a residence. The dispositive issue in Caulkins was "whether the enforcement of an oral contract for home improvements is barred by the provisions of General Statutes 20-429 requiring that home improvement contracts be in writing." The contractor argued that the "full performance" exception to the Statute of Frauds (Connecticut General Statutes § 52-550) should be applied to § 20-429. The Court disagreed, stating:
The language of 20-429(a) is clear and unambiguous: "No home improvement contract shall be valid unless it is in writing . . ." The use of the word "no" in the statute is self-explanatory. The use of the word "shall" by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive.
Caulkins, supra, at 717.
The Court in Caulkins further observed:
It is apparent that this law was passed for the protection of the public and that the remedial purposes of the statute would be undermined if this court were to permit a contractor to enforce an oral contract on the grounds claimed. For example, if a home improvement contractor could, without a written contract, perform certain work and then allege an oral agreement for precisely the same work alleged to have been fully performed, the purpose and clear intent of 20-429 would be thwarted.
Id. at 720.
In Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), the Supreme Court held that where a contractor failed to comply with the HIA written contract requirement, it could not recover in quasi contract. The Court reaffirmed its holding in Caulkins that the HIA was intended for the protection of consumers and, therefore, the statute's requirement of a written contract was mandatory. The Court further stated:
The remedial purpose of 20-429 would be placed in even greater jeopardy if a contractor could recover by merely demonstrating that services had been rendered, without even alleging that there was some sort of agreement for the work. The facts of this case illustrate that the legislature could legitimately have determined that a home improvement contract "in writing and . . . [containing] the entire agreement between the owner and the contractor," as 20-429 (a) requires, serves salutory evidentiary and cautionary policies in consumer protection.
Barrett Builders, supra, at 325.
Given the history of continued consumer complaints about home improvement contracts, we are persuaded that strict compliance with the mandate of the statute is inconsistent with permitting recovery in quasi contract . . . Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer. Viewing the continued incidence of complaints about home improvement contractors, the legislature could legitimately view as more urgent the need to protect consumers from unscrupulous contractors than the need to protect innocent contractors from manipulative consumers. This case illuminates an additional problem that recovery in quasi contract in disregard of 20-42 poses. It is evident that the objective of the Home Improvement Act is not only to protect homeowner from substandard work, but also to ensure the homeowners are able to make an informed choice on a decision that has potentially significant financial consequences.
Id. at 326-27.
The defendant argues that it falls within the exception set forth in Connecticut General Statutes § 20-428, which provides:
Exemptions. This chapter shall not apply to any of the following persons or organizations: . . . (4) any person holding a current professional or occupational license issued pursuant to the general statutes, and any person registered pursuant to sections 25-126 to 25-137, inclusive, provided such person engages only in that work for which such person is licensed or registered.
The defendant claims that it falls within the exemption because it is a registered home improvement contractor. Under this argument a contractor who registered under the HIA would be immune from its requirements. There is no support for this argument either in the language of the statute or in the case law.
In addition to the requirement that a home improvement contract be in writing, § 20-429(a)(8) also requires that a home improvement contract must "be entered into by a registered salesman or registered contractor." This language alone invalidates the defendant's argument.
The exemption contained in § 20-428 was intended to apply to those who possess a license which has been issued after the license holder has passed a test or other evaluative process. For example, in Avon Plumbing Heating Company, Inc. v. Fey, 40 Conn.App. 351, 670 A.2d 1318 (1996), the Court held that one who held a valid plumber's license fell within the exemption because the purpose of the HIA was to ensure that home improvements were performed by qualified people and that purpose would not be violated by a licensed plumber who performed a home improvement.
Unlike a plumber's license, which is only issued to those who possess requisite skill and knowledge in plumbing, anyone can obtain registration as a home improvement contractor by paying a small sum of money to the Commissioner of Consumer Protection. See Connecticut General Statutes §§ 20-420 through 20-422. Allowing someone to avoid the requirements of the HIA merely because they had registered as a home improvement contractor would do nothing to ensure that home improvements were performed by a qualified contractor.
It is clear that the contract upon which the mechanic's lien is based is unenforceable because it was not in writing as required by § 20-429. Therefore, the mechanic's lien is invalid and is ordered discharged.