ACCURATE MECH. v. SUMMER GLEN ESTAT., No. HHB CV 09-5012275-S (Oct. 5, 2009)


ACCURATE MECHANICAL, LLC v. SUMMER GLEN ESTATES, INC. ET AL.

2009 Ct. Sup. 19005, 48 CLR 815
No. HHB CV 09-5012275-SConnecticut Superior Court Judicial District of New Britain at New Britain
October 5, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR REDUCTION OF MECHANIC’S LIEN
ROBERT F. VACCHELLI, Judge, Superior Court.

This case is an action by Accurate Mechanical, LLC seeking to foreclose on a mechanic’s lien that it filed against property owned by the defendant, Summer Glen Estates, Inc., located at 115 Woodfield Road, Southington, CT. The property consists of a residential lot with a new, four-bedroom, three-bathroom home in a new development. The lien is in the amount of $148,781.00 for services rendered and materials furnished in outfitting the home and improving the property. In advance of trial, the defendant has filed a motion for reduction of this mechanic’s lien. For the following reasons, the motion is granted, and the lien is reduced to $19,786.18.

I
Hearings on motions for reduction of mechanic’s liens in advance of trial are specifically permitted by General Statutes § 49-35a(c). At such a hearing, “the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice . . . 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.” General Statutes § 49-35b(a).

II
A hearing in this matter was conducted on August 26 and September 10, 2009. The court heard testimony from Brian Whitford, sole member of Accurate Mechanical, LLC, and the person who did, or arranged for, the work at the property, and who also intended to buy the home; John Mastrianni, vice president of Summer Glen Estates, Inc., owner of the development that includes CT Page 19006 the lot in question, and secretary of Appletown Realty, Inc., the real estate broker for the development; Alan Dionne, project manager for Calco Construction,
Development, Inc., builder of the development; and Gary Grindle, whose family is currently renting and living in the house with a contract to buy the property. The court also received in evidence 43 exhibits consisting of, inter alia, various records documenting the work done, and efforts to resolve disputes concerning the work done on the home. The parties subsequently filed briefs in support of their respective positions.

III
The court finds the following facts: In 2007, Brian Whitford and his fiancee, Joanne Kavanah, were looking to buy a home. They decided to buy a new home to be built in a new development being created by Summer Glen Estates, Inc. and Calco Construction, Development, Inc., in Southington, CT. They entered into a Sales Agreement on August 31, 2007, to have a home built in Summer Glen Estates for $537,000.00, at first for 114 Woodfield Road, but later changed it to 115 Woodfield Road, in the same development. The contract provided that the home would be built by Summer Glen Estates, Inc., and that any deviation in the specifications for construction involving an extra charge or credit must be agreed upon in writing between the contracting parties before any changes were to be made. Whitford dealt with John Mastrianni, who was both a vice president with Summer Glenn Estates, Inc. and an officer with the real estate broker for the project, Appletown Realty, Inc., and with Alan Dionne of Calco Construction, Development, Inc., the project manager for the project. Whitford was interested in installing a geothermal heating and cooling system[1] in the house and other custom features that the builder was not offering. Being a contractor himself, Whitford also was interested in doing, or arranging for, the installations himself. The builder was cooperative, at first, and Whitford started do some work as early as October 2007, without a written agreement. On April 17, 2008, a written agreement was reached allowing Whitford to install a geothermal HVAC system, in lieu of the planned system, for a $10,000.00 credit at closing. It was also agreed in writing at that time that he would be allowed to install other specified items of his preference. Total credits amounted to $19,786.18. Whitford worked on the house through his company, Accurate Mechanical, LLC, installing those items of his preference and others, but expenses soon began to spin out of control. The geothermal system eventually cost nearly $50,000.00 and Whitford installed many other items, with the knowledge of the CT Page 19007 builder, but with no final, written agreement as to what credits would or would not be allowed. By August 22, 2008, with no agreement in sight, Whitford stopped work and he filed the subject mechanic’s lien on October 24, 2008, in the name of Accurate Mechanical, LLC, in the amount of $148,781.00. By the time of the hearing, Whitford found other records of work that he performed, or arranged to be done, on the property for a grand total of $162,470.63. That these expenses were incurred was established. The issue for the court, however, is whether the plaintiff is eligible to file a lien for any amount over $19,786.18. The defendant agrees that the lien is valid for only $19,786.18, the amount that it agreed to give as a credit, but nothing more. The plaintiff argues that the lien is valid for the full $148,781.00.

In a Motion for Reduction of Mechanic’s Lien, the scope of the issues to be decided by the court is limited. The court is not deciding the total amount of the defendant’s potential liability to the plaintiff. It is only deciding the total amount the plaintiff can secure in advance of trial by way of a mechanic’s lien, a very powerful, but very limited, statutory prejudgment remedy. For the following reasons, the court finds that the defendant has proven by the clear and convincing evidence that the lien is excessive because the plaintiff is only eligible to lien up to $19,786.18. Therefore, the court orders the lien reduced to $19,786.18.

IV
The right to a mechanic’s lien is a statutory right in derogation of the common law. New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611, 706 A.2d 465 (1998); Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 550, 429 A.2d 796 (1980). The Connecticut Supreme Court has stated that the provisions of the mechanic’s lien statute “should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials.” New England Savings Bank v. Meadow Lakes Realty Co., supra, 243 Conn. 611; but that “interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.” Id. citing Camputaro v. Stuart Hardwood Corp. supra, 180 Conn. 551 and Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954).

The mechanic’s lien statute provides, in pertinent part, as follows:

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(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected . . . or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land then the plot of land, is subject to the payment of the claim.

General Statutes § 49-33(a) (emphasis added).

The specific provision of this statute presently in issue (emphasized above) is the provision requiring consent of the owner. On this point, in the instant case, the owner, Summer Glen Estates, Inc. and its agent, Calco Construction, Development, Inc., knew what Whitford was doing and they permitted him to work, or arrange to for work, on the home that he had contracted to buy from them, but this permission did not create unlimited exposure to any mechanic’s lien:

“[A] landowner does not subject his property to a mechanic’s lien by simply allowing work to be done on it.” [Hall v. Peacock Fixture Electric Co., 193 Conn. 290, 295, 475 A.2d 110 (1984)]. Nor does the owner’s knowledge that the work is being done subject the property to a mechanic’s lien. Newtown Associates v. Northeast Structures, Inc., 15 Conn.App. 633, 639-40, 546 A.2d 310 (1988). “The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, CT Page 19009 liable for the materials or labor.” Avery v. Smith, 96 Conn. 223, 228, 113 A.313 (1921). Although an express contract is not necessary for such consent, the services must be furnished under circumstances indicating an implied contract by the owner to pay for them. Id.

Centerbrook Architects Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591, 620 A.2d 127 (1993); see also, Wilbur Smith Assocs., Inc. v. FJ, Inc., 34 Conn.Sup. 638, 382 A.2d 541 (1977).

The facts in the instant case demonstrate that the owner knew plaintiff was expending money and effort on the property in question, but it only agreed to a certain value for certain work to be used as a credit at closing in the amount of $19,786.18. Nothing else was agreed to, and plaintiff must be deemed to have proceeded at his own risk as far as the mechanic’s lien is concerned. Centerbrook, Architects Planners v. Laurel Nursing Services, Inc., supra, 224 Conn. 587, 592. Moreover, “[A] mechanic’s lien may not attach to any real estate in an amount greater than the price that the owner has agreed to pay the contractor for the improvements to the real estate.” (Citation omitted.) Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, 39 Conn.App. 544, 547, 664 A.2d 1177, cert. denied, 235 Conn. 930, 667 A.2d 800 (1995); see also, General Statutes § 49-36(a). The agreement in this case was for certain work for a $19,786.18 credit at closing. Therefore, the lien cannot exceed that amount. It should also be noted that in this case the owner, [2] Summer Glen Estates, Inc., had no agreement with the Accurate Mechanical, LLC. Accurate Mechanical LLC’s agreement, if at all, was with Whitford, who used it to perform the work. As such, Accurate Mechanical, LLC is more like a subcontractor. A subcontractor’s lien under these circumstances is limited to the amount the owner agreed to pay the general contractor. General Statutes §49-22(e); Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 572, 438 A.2d 774 (1980). Again, Summer Glen Estates, Inc. only agreed to a credit of $19,786.18 for the work. The lien must be limited to that amount.

The facts in this case further established that the defendant retained all of the improvements installed by the plaintiff, and CT Page 19010 on February 10, 2009, it entered into contract to sell 115 Woodfield Road to the Grindles for $570,000.00, contingent, inter alia, on the seller’s ability to provide clean and marketable title to the property. Currently, the Grindles are living in the home and renting it at the rate of $100.00 per day, waiting for a closing. Plaintiff advances the equitable argument that the defendant should not be permitted to unjustly retain the benefits of Accurate Mechanical, LLC’s efforts without payment. Whether the defendant is exposed to liability on this point may be decided elsewhere.[3] However, it is not the office of the mechanic’s lien to remedy that situation. “Some statutes in other states justify mechanic’s liens on the owner’s property on the basis that the owner is otherwise unjustly enriched by the improvement of his property . . . That is not our law. In this state, a subcontractor’s right to a mechanic’s lien is said to flow from his equitable entitlement to the lien which would otherwise attach in favor of the general contractor.” (Citations omitted.) Seaman v. Climate Control Corp., 181 Conn. 592, 601, 436 A.2d 271 (1980); see also Hall v. Peacock Fixture Electric Co., 193 Conn. 290, 296, 475 A.2d 110 (1984) (“[W]e specifically [reject] the argument that a mechanic’s lien may be founded on the basis that the owner is unjustly enriched by the improvement of its property”).

Therefore, the court finds that the defendant has proven, by the clear and convincing evidence, that the lien is excessive because the plaintiff is only eligible to lien up to $19,786.18. The lien must be reduced to $19,786.18.

V
For all of the foregoing reasons, the defendant’s motion is granted, and the lien is reduced to $19,786.18.

[1] A geothermal system is a central heating and/or cooling system that pumps heat to or from the ground. It uses the earth as a heat source (in the winter), or a heat sink (in the summer). This design takes advantage of the moderate temperatures in the ground to boost efficiency and reduce the operational costs of heating and cooling systems. See Geothermal Heat Pump, http://en.wikipedia.org/wiki/Geothermal_Systems
[2] Whitford argues that he and Kavanah should be considered the owners of the property under the doctrine of equitable conversion by virtue of their sales agreement for the property, citing CT Page 19011 Francis T. Zappone Co. v. Mark, 197 Conn. 264, 267, 497 A.2d 32 (1985), and since they consented to Accurate Mechanical, LLC’s full bill, the mechanic’s lien should be enforced in full. None of the qualifying facts that might authorize a buyer under a sales agreement to so encumber the property exist in this case. There was no requirement that the buyer perform work for the benefit of the seller. See Centerbrook, Architects Planners v. Laurel Nursing Services, Inc., supra, 224 Conn. 589. Moreover, the sales agreement in this case expressly waived any such equitable ownership rights. See Contract, para. 5; Exhibit 4.
[3] A companion lawsuit is pending wherein Whitford and Kavanah are suing Summer Glen Estates, Inc. and others in a 15-count complaint alleging, inter alia, unjust enrichment. See Whitford, et al. v. Summer Glen Estates, Inc., et al., No. CV 09-5011472-S.

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