Marie Zunda et al. v. Hess Construction & Renovation
FST CV 11 6010837 S
Decided: January 19, 2012
This case comes to this court as a motion to discharge a mechanic’s lien. Under Connecticut General Statutes § 49–35b(a), the lienor must proceed first to prove probable cause to establish the validity of the lien. The owner must then prove by clear and convincing evidence that the lien is not valid. Therefore, the lienor’s standard of proof is probable cause, and the owner’s standard of proof is clear and convincing evidence.
The Application for Discharge of Mechanic’s Lien dated August 12, 2011 was pleading No. 131.00. The Application for Discharge of Mechanic’s Lien does not set forth with specificity the reasons for the claim to discharge the mechanic’s lien. The allegation is in Paragraph 3 There is not probable cause to sustain the validity of the mechanic’s lien.” There is no specificity. It is not until the plaintiffs’ memorandum of law is filed on December 9, 2011 as Pleading No. 101 that we find out the specifics of the claim.
Suffice it to say that the thrust of the claim is that the defendant (hereinafter called the Contractor), did not comply with the requirements of the Home Improvement Act Connecticut General Statues § 20–418 et seq. The Zundas are the owners. (Hereinafter called the Owners).
A fair reading of the plaintiffs’ memorandum of law assigns noncompliance with the Home Improvement Act, (hereinafter called the Act) for the discharge of the lien. The claims are: (1) that there is no transaction date, (2) that the contract does not include a commencement date, (3) that the notice of cancellation is required to be in the contract in immediate proximity to the parties’ signature. The location of the cancellation notice language was not complied with, (4) the contract fails to comply with the Act insofar as the Contractor failed to provide a proper notice of cancellation, (5) Charles Zunda an owner did not sign the contract.
Generally, disputes as to whether home improvement contracts comply with the Act will fall under one of two lines of court decisions. Specifically, Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218 (1998) or Kronberg Brothers, Inc. v. Steele, 72 Conn.App. 532 (2002). The Wright Brothers court rejected the notion that strict compliance requires a ritualistic perfect compliance. This is the claim of the Contractor. The Kronberg court held that the contract materially failed to comply with the Act and therefore was the contract unenforceable. This is the owner’s claim.
Under the facts in this case, the court finds that the contract was in substantial compliance with the Home Improvement Act, and that there is probable cause to sustain the validity of the lien. The Owner has failed to prove by clear and convincing evidence that the lien is not valid.
In Wright Brothers, the Supreme Court held there was no violation of the act when owners have to determine when the cancellation begins and ends. A contractor’s failure to provide the owner with the start and end date of the cancellation period, in the cancellation notice, is not a violation as long as it is not unreasonably difficult for the owners to ascertain the dates from the contract documents including the notice.
In the instant case, there is compliance with Wright Brothers because objectively and subjectively it is well within the capacity of any reasonable consumer to glean this information from the contract documents. Marie’s Zunda’s testimony at the hearing established that she claimed she knew the effective date of the Contract and it was September 20, 2010. She was not confused about the right to cancel. She knew when the contract was effective, and she knew she had a three-day right to cancel the contract. The Contractor gave her the notice of cancellation a month before she signed the contract, and he believes he gave it to her when she signed it again, although his records do not show that, but he indicated that was his normal course. She did not remember receiving such notice but does not deny she received it. The right to cancel was in multiple drafts of the contract that the Owner and her attorney reviewed and made changes to. Ms. Zunda was aware of the right to cancel and could have easily calculated how long she had to exercise it, had she wanted to exercise that right.
Ms. Zunda however chose to not raise the issue until the Contractor had substantially performed and the Owners paid the Contractor approximately $700,000.00. This is the first time that she claimed she was not given a proper right to cancel. Her claim was not that she wanted to cancel, but rather she was using this as an argument in order to discharge the mechanic’s lien. It was not until the parties began to have disputes over the time the work would be finished, the quality of the work, and the cost, that the issues concerning the Act were raised.
This case calls for an interpretation of the Act that does not require technically perfect compliance, but acknowledges the Act’s remedial purposes. The legislature intended the Act to protect homeowners from unscrupulous contractors not to lead to unworkable and unjust results. It did not intend to give homeowners the opportunity to use minor discrepancies under the circumstances where the homeowner did not need the protection and the absence of technical perfection had no affect on or meaning to the transaction. The homeowners here were not prejudiced in any way by the Contractor’s failure to comply technically with the Act.
It is fundamentally unfair to discharge the lien. The court finds on these facts substantial compliance with the Act.
This case is substantially different also from Kronberg, in that in this case the Owners wanted the Contractor to start working before the contract was signed. They had a lawyer review the contract presumably for compliance with the law, and the mention of cancellation was not until much more was done.
The claim that Mr. Zunda did not sign the contract and therefore it was not valid, is rejected by this court. It is clear that to this court that Ms. Zunda signed not only on her behalf, but on behalf of the husband who authorized the contract and the work performed thereunder. His name appeared on the front of the contract along with Ms. Zunda. She signed her name and the court can reasonably infer it was for both of them as she was his agent. Both Owners were involved in the work performed by the Contractor. At the hearing she was the sole representative of the parties and that suggests that she had authority to bind her husband on the signing of the contract. He did not appear and testify that he did not approve the work done to the Zundas’ home.
The parties substantially disagree as to the amount due under the claim contract. The court finds that it need not address this issue in detail at this time since the issue before the court is the probable cause to sustain the validity of the lien, which the court finds under all the circumstances.
Accordingly, the motion to discharge the mechanic’s lien is denied.
EDWARD R. KARAZIN, JR.
JUDGE TRIAL REFEREE
Karazin, Edward R., J.T.R.