36 DeFOREST AVENUE, LLC v. LEONARD CREADORE.

2005 Ct. Sup. 8609
No. CV 05-400 73 79 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
May 9, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
RADCLIFFE, JUDGE.

The defendant, Leonard Creadore, claims a mechanics lien covering property known as 36 DeForest Avenue, Bridgeport, in the amount of $19,903.94.

36 DeForest Avenue, LLC, the plaintiff in this action, is the owner of the parcel.

Prior to February 2005, the property was owned by the late Steven Karantonis, and his daughter Maria Karantonis, now Maria Cutler.

A Certificate of Mechanics Lien (Ex. J.), filed on the land records in the City of Bridgeport on January 27, 2005, was served on the owner of the property on February 23, 2005.

Leonard Creadore claims that the lien involves services and materials provided beginning in December 2003, and ending on November 1, 2004. (Ex. I.)

He claims that the materials and services were provided as part of an overall renovation project undertaken by the late Steven Karantonis, with whom Creadore enjoyed a personal and professional relationship for many years.

According to Creadore, extensive renovations and remodeling of 36 DeForest Avenue were contemplated (Ex. B.), but were never completed, due to the death of Steven Karantonis on October 30, 2004.

The business arrangement between Creadore and Karantonis can best be described as informal. There was no written agreement specifying the nature of the work to be performed, the cost, or the method of payment. CT Page 8610

The services which Creadore claims are encompassed within the mechanics lien involve an alarm system (Ex. C.), installation of an air conditioning system, furnace, and a hot water heater (Ex. D.), kitchen cabinets, countertops, tile and plumbing work (Ex. H.), and compensation for a visit to the property on November 1, 2004 (Ex. I.) to check the water heater, and the heating unit.

Creadore testified that he went to 36 DeForest Avenue on November 1, and gained entry by the use of a key which had been given to him by Steven Karantonis. He further maintains that he performed necessary work on the newly installed furnace, hot water heater and thermostat.

William Cutler, the son-in-law of the decedent, testified that he changed the locks at 36 DeForest Avenue in early October 2004, after his father-in-law became seriously ill. He stated that no one could have entered the property without his permission, and that he had no knowledge of Creadore’s November 1 visit.

The defendant’s claims relative to the mechanics lien, are documented in service invoices generated by the defendant, as follows:

December 22, 2003 (Ex. C) $ 433.78 April 14, 2004 (Ex. D) $9,850.00 May 3, 2004 (Ex. H) $8,545.16 November 1, 2004 (Ex. I) $ 75.00 __________ TOTAL CLAIM $19,903.94

Other monies claimed to be owing to Creadore by Steven Karantonis (Ex. E.), concern other property, and are not included for purposes of the claimed mechanics lien.

Leonard Creadore stated that no services were performed or materials provided to 36 DeForest Avenue between May 2004 and November 1, 2004.

The plaintiff, 36 DeForest Avenue, LLC, brings this action to discharge or reduce the mechanics lien filed by Leonard Creadore. In the alternative, the plaintiff asks permission to substitute a bond, as permitted by statute.

36 DeForest Avenue, LLC further seeks an award of damages, and CT Page 8611 attorneys fees.

The plaintiff claims that the service of the mechanics lien was defective, in that service was not made upon the prior owner of the parcel.

It further claims that the mechanics lien was not timely filed, in that all materials were furnished and all services were rendered more than ninety days prior to the lodging of the mechanics lien with the Town Clerk of the City of Bridgeport, as required by statute.[1]

MECHANICS LIEN CERTIFICATE WAS PROPERLY FILED
The Certificate of Mechanics Lien was received in the land records of the City of Bridgeport on January 27, 2005. It was served upon the owner of the property twenty-seven days later on February 23, 2005.

The certificate was lodged with the town clerk within ninety days of November 1, 2004, and was served upon the owner of the building, 36 DeForest Avenue, LLC, within thirty days of January 27, 2005, as required by statute.[2]

The plaintiff seems to claim that service is required on the person owning the property at the time services were performed, or materials furnished, in addition to the current owner of record.

Section 49-34 of the General Statutes contains no provision mandating service of process upon the prior owner.

PROBABLE CAUSE TO SUSTAIN VALIDITY OF LIEN ESTABLISHED
Any person, having provided materials or services in connection with the construction, raising, removal or repairs of any building, is entitled to claim a mechanics lien. New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 612
(1998); S. 49-33(a), C.G.S.

The defendant does not claim to have provided any materials on November 1, 2004. However, he claims that servicing the heating system, checking the water heater, setting the thermostat, and shutting down the water supply in the building constituted “services” related to the work performed prior to June of 2004. CT Page 8612

He claims that the heating system, installed in the spring of 2004, was under warranty, and that he was obligated, in the interest of the property owner and in his own self interest, to see that the equipment functioned properly.

The plaintiff, while not conceding that Leonard Creadore was actually on the premises on November 1, 2004, argues that Exhibit I deals with items involving maintenance, and does not relate to the construction, raising, removal or repair of the building.

The plaintiff further maintains that any services rendered on November 1, 2004 were trivial, and therefore did not extend the time for the filing of a mechanics lien. F.B. Matterson Company, Inc. v. Conrad Tarke, et. al., 247 Conn. 234, 239 (1998).

At a hearing, held to determine the validity of a mechanics lien, the burden is on the person seeking to assert the lien to demonstrate that there is probable cause to sustain its validity. S. 49-35b(a), C.G.S.

To satisfy the probable cause standard, a party need not establish, by a preponderance of the evidence, the validity of his claim. He must only establish its probable validity Ledgebrook Condominium Ass’n, Inc. v. Lusk Corporation, 172 Conn. 577, 583 (1977). The hearing is not intended to be a full trial on the merits. Augeri v. CF. Wooding Co., 173 Conn. 426, 429 (1977).

The defendant argues that his November 1, 2004 activity should not be viewed in isolation, but as part of a long-term construction and renovation project which he and the decedent, Steven Karantonis, agreed to undertake without the formalities of a signed contract or other written agreement.

He claims that the contemplated additional work is shown on Exhibit B.

Recognizing the nature of the evidence sufficient to meet the probable cause threshold, and conscious of the remedial intent of the law governing mechanics liens; City Lumber Co. v. Borusk, 131 Conn. 640, 645 (1945); the court finds that the defendant, Leonard Creadore, has met his burden of demonstrating the validity of his mechanics lien. CT Page 8613

It is further found, that the services rendered on November 1, 2004, were part of an ongoing project at the premises, begun at the request of Steven Karantonis.

The fact that Leonard Creadore was given a key to the premises, and was at the premises a few days prior to November 1, to assist in filling in a hole, supports his claim that a long-term project was contemplated.

No evidence presented at the hearing suggests that Leonard Creadore delayed completion of the project for an unreasonable period of time, in order to extend the time within which a mechanics lien could be filed.

Therefore, it is unnecessary to consider application of the substantial completion rule, or to determine if the November 1, 2004 services were performed at the specific request of the owner, Steven Karantonis. F.B. Mattson Company, Inc. v. Conrad Tarke, et al., supra, 239; Nichols v. Culver, 51 Conn. 177, 183 (1883).

It is further found that there is probable cause to establish the amount of the lien claimed, $19,903.94. The plaintiff has not shown, by clear and convincing evidence, that the lien is either invalid or excessive.[3]

The plaintiff’s application to discharge or reduce the mechanics lien is therefore denied.

Denial of the relief sought, also requires denial of the request for attorneys fees and damages, pursuant to S. 49-51, C.G.S.[4]

BOND MAY BE SUBSTITUTED
In the alternative, the plaintiff asks for permission to substitute a bond with surety, pursuant to the provisions of S. 49-37 of the General Statutes.

The court finds that the plaintiff; in good faith, intends to contest the lien, and therefore orders that the plaintiff be permitted to substitute a bond with surety, in the amount of twenty thousand dollars ($20,000).

RADCLIFFE, J. CT Page 8614

[1] S. 49-34, C.G.S. — “A mechanics 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 . . . is situated, a certificate . . .”
[2] S. 49-34, C.G.S. — “. . . not later than thirty days after lodging with the town clerk, serves a true and attested copy of the certificate upon the owner of the building . . .”
[3] S. 49-35b(b)(B), C.G.S.
[4] S. 49-51, C.G.S. — “. . . If the court is of the opinion that such certificate of lien was filed without just cause, it may allow in its discretion, damages . . . not exceeding the sum of five thousand dollars.”

CT Page 8615