Damian Currier et al. v. Michael McCue
CV116004266S
????Decided: January 19, 2012
On January 18, 2012, this matter was brought before the court for a hearing on the plaintiffs’ application for discharge of mechanics lien. ? The plaintiffs, Damian and Kristin Currier are owners of a residence located at 41 Park Place in Meriden. ? The defendant, Michael McCue is a contractor in home improvement doing business as Emerald in the Town of Stonington.
On October 13, 2010, the parties entered into a ?Homeowner/Contractor Agreement? which provided the contractor to perform renovations on the property under Section 203(k) of the National Housing Act which provided for FHA mortgage insurance and financing in the amount of $51,845.45 for future construction on the home.1??Work commenced on or about the week following Thanksgiving 2010 and continued until April 2011 until such time as the plaintiffs terminated their agreement with the defendant claiming the contractor was unwilling to work cooperatively with the plaintiffs and that the work performed was inadequate and/or incomplete. ? The defendant, Michael McCue, claims that he performed services and provided materials in excess of the payments he received and on July 6, 2011, pursuant to General Statute ??49?35a, he filed a Mechanic’s lien in the amount of $5,000 against the property.
Upon a hearing held on the application or motion set forth in section 49?35a, ?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 under section 49?35a 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 Statute ??49?35a.
In support of his claims the defendant presented testimony of Erik Currier, the brother of the plaintiff, who is a licensed contractor, and who introduced the defendant to the plaintiffs. ? Although this witness testified that he believed the defendant performed the work competently, the testimony was of no assistance in establishing probable cause to substantiate the validity of his lien.
The parties did not execute a written contract under General Statutes ??20?429, known as The Home Improvement Act.
General Statute Sec. 20?429 provides ? 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 and the contractor’s registration number, (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, (8) is entered into by a registered salesman or registered contractor, and (9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years. ? 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.
Further, a plaintiff may not seek foreclosure of a mechanic’s lien on the defendants’ home where a lien is invalid and unenforceable under the HIA. See Caulkins v. Petrillo, 200 Conn. 713, 720, 513 A.2d 43 (1986) (enforcement of oral home improvement contract is barred by HIA); ?see also Magness v. CPI Home T & P Business Improvement, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0286633 (January 23, 2006, Tanzer, J.).
After having considered the testimony of the witnesses, the exhibits entered into evidence, and the arguments of the parties, this court concludes that the plaintiffs have met their burden by clear and convincing evidence that the mechanic’s lien is invalid and hereby orders the mechanic’s lien discharged.
BY THE COURT
Denise D. Markle, Judge
FOOTNOTES
FN1.?The contract was entered into evidence as a Plaintiff’s exhibit. ? The court notes that the provisions in this contract do not specify the exact work to be performed but provides for general terms and conditions regarding the duties and responsibilities of both parties under the financing terms..??FN1.?The contract was entered into evidence as a Plaintiff’s exhibit. ? The court notes that the provisions in this contract do not specify the exact work to be performed but provides for general terms and conditions regarding the duties and responsibilities of both parties under the financing terms.
Markle, Denise D., J.