Opinion
No. CV 08-501 33 50 S
November 7, 2008
MEMORANDUM OF DECISION
FACTS
Sometime in February 2005, the plaintiffs, David and Tracy Wright, contacted John Morgan, a licensed architect and president of Aecon, Inc., to discuss the construction of an addition to their existing residence. The defendant, Aecon, Inc., agreed to assist the [the plaintiffs] with design and architectural services and construction administration and management with regard to the antique frame addition. The parties entered into an oral agreement at some point in February of 2005 for the defendant to provide the aforementioned services. A written contract, dated September 27, 2005, was made for the purpose of providing document at on to a bank. The contract lists the plaintiffs as owners of the property, Aecon Inc. as the contractor and John Morgan as the architect. The contract farther set forth the defendant's duties under the contract which included budgeting, scheduling, bidding and letting of subcontracts, coordination of work performed by the trades, acceptance or rejection of the work performed by the trades, billing of subcontractors and payment of subcontractors. A building permit application filed on October 5, 2005, lists David Wright as the owner and general contractor and John Morgan as the architect. Aecon, Inc. and John Morgan provided advisement, management and architectural services for the project. The defendant was terminated from the project at some point in time.
On October 25, 2007, the defendant filed a mechanic's lien in the amount of $123,233.00 against the plaintiffs. The plaintiffs subsequently filed an application for discharge of the mechanic's lien pursuant to General Statutes § 49-51. A hearing was held on the matter before Judge Hiller on March 10, 2008.
DISCUSSION
Under § 49-51(a), "[a]ny person having interest in any real . . . property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor . . . If the lien is not discharged . . . the person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien . . ."
The plaintiffs claim that their contract with the defendant is governed by the Home Improvement Act (HIA) set forth in General Statutes § 20-418. In their post-hearing brief the plaintiffs argue that the defendant acted as the general contractor for the work in question by "budgeting, scheduling, bidding and letting of subcontracts, coordination of the work performed by the trades, acceptance or rejection of the work of the trades, billing and payment of the contractors," regardless of what the parties termed the defendant's role. Consequently, the plaintiffs argue, since the defendant is a general contractor and the HIA requires general contractors to have written contracts which comply with the mandates of that statute, the defendants mechanic's lien is invalid and should be discharged. Finally, the plaintiffs argue that the architect exception to General Statutes § 20-428 is not applicable here because the defendant engaged in work other than just the architecture for which John Morgan was licensed.
In its memorandum of law in opposition to the plaintiffs' application to discharge the mechanic's lien, the defendant argues that it merely acted as a subcontractor, and therefore the HIA does not apply to it. The defendant further argues that the mechanic's lien is valid because its president, John Morgan, is a licensed architect, and therefore the defendant is exempt from the mandates of the HIA pursuant to § 20-428(4).
Two Connecticut Supreme Court cases are dispositive of the issue in this matter. In Meadow v. Higgins, 249 Conn. 155, 733 A.2d 172 (1999), the court analyzed whether a non-party acted as a general contractor for purposes of the HIA. The court upheld the findings of an attorney trial referee that "the architect essentially managed this construction project as [agent] of the owner from design to delivery . . . [and it was] required to fulfill the normal duties of a home improvement contractor, which included obtaining permits, controlling schedules and meeting payments . . . [B]ecause [the architect] had performed most of the functions of a general contractor vis-a-vis the plaintiff, [the architect] has acted essentially as a general contractor and, therefore, the arrangement between the plaintiff and the defendants did not support of the existence of an agreement between a contractor and an owner for the purposes of § 20-419(5) . . . [The parties'] choice of arrangement did not alter the relationship of subcontractor, general contractor and homeowners . . ." (Citations omitted; internal quotation marks omitted.) Id., 169-72. The court thereby upheld the finding that the party who acted as a general contractor was in fact a general contractor for purposes of the HIA. Id., 172.
In MJM Landscaping Inc. v. Lorant, 268 Conn. 429, 845 A.2d 382 (2004), the plaintiff construction company was determined to be a subcontractor and the HIA did not apply to its mechanic's lien. In deciding the issue, the court focused on the fact that the defendant homeowner had "retained Greenwich Design to find a contractor to build and install a septic system on the defendant's property and to oversee that project . . . The plaintiff responded to the solicitation [for bids] by submitting a proposal to Greenwich Design . . . At the direction of Greenwich Design, the plaintiff transmitted its proposal to the defendant, who agreed to it . . . The evidence indicated that the defendant hired Greenwich Design to complete the tasks normally assumed by a general contractor, thereby providing the trial court with an adequate foundation on which to base its finding that Greenwich Design, and not the plaintiff, had assumed the role of general contractor." Id., 437-38.
In the present matter, the defendant is a contractor within the meaning of § 20-419(3).
The written contract between the parties is a home improvement contract within the meaning of § 20-419(5), and the contract provisions must therefore comply with § 20-429 for the mechanic's lien to be valid. As admitted by the parties, the contract does not conform to the requirements. Although the defendant argues that it was only a subcontractor, and therefore the HIA does not apply, Meadow v. Higgins, supra, 249 Conn. 166, the defendant in fact acted as a general contractor. The defendant acted to design and build the addition to the plaintiffs' home, which included budgeting, scheduling, bidding and letting of subcontracts, coordination of work performed by the trades, acceptance or rejection of the work performed by the trades, billing of subcontractors and payment of subcontractors. These duties are those of a general contractor. Id., 169. The nominal duties the plaintiffs undertook in regard to the land engineering for the septic system (completed by a different general contractor before the defendant was retained), painting and plumbing do not warrant a finding that they acted as the general contractor. Id., 172. Even if, as the defendant alleges, the parties discussed the role of the defendant and the plaintiffs agreed that the defendant "was not going to be the general contractor," their own characterization of their roles is not determinative as to what they in fact were. Id., 171.
Section 20-428 provides in relevant part: "This chapter shall not apply to . . . (4) any person holding a current professional or occupational license . . . provided such person engages only in that work for which such person is licensed or registered." (Emphasis added.) Although the defendant argues it is exempt from mandatory compliance with the HIA pursuant to § 20-428(4) because its president, John Morgan, is a licensed architect, the defendant admits in its brief that " a portion of the amount claimed in the mechanic's lien, filed by Aecon, Inc., is for architectural services. Clearly, some of the services performed by Aecon, Inc., fit under the definition of `practice of architecture . . .'" (Emphasis added.) Since the defendant by its own admission engaged in some work other than the practice of architecture, it is not exempted from complying with the HIA under § 20-428(4). Drain Doctor, Inc. v. Lyman, Superior Court, judicial district of New Britain, Docket No. CV 07 5003259 (November 27, 2007, Shapiro, J.) ( 44 Conn. L. Rptr. 583) ("If a contractor performs work primarily within the scope of its license, but a small amount without that scope, § 20-428(4) exempts none of the work from the Act, possibly leaving the contractor without a remedy at law or in equity, if the home improvement contract does not comply with the Act.").
As the defendant acted as a general contractor within § 20-418 and there was no contract between the parties, the defendant did not comply with § 20-429. The plaintiffs' application to discharge the defendant's mechanic's lien is granted.