Opinion
No. CV05-4004567
March 3, 2006
MEMORANDUM OF DECISION
Gilman Levesque et al, have applied to the court to discharge a mechanic's lien in favor of G. Madore Landscaping and Excavating which was filed on the land records of the Town of Middlefield claiming nonpayment for materials and services in the amount of $73,150. The lien claimed that Madore commenced to furnish materials and render services on or before November 1, 2004, and ceased furnishing such materials and services on or about September 8, 2005. The lien was served and recorded on December 7, 2005.
There is a serious disagreement between the parties concerning the value, if any, of undone work. At the request of the court, the court took testimony only on the issue of the timeliness of the filing of the lien and was prepared to take testimony on the amount of the lien if the court found the lien to be otherwise valid.
An application for the reduction or discharge of a mechanic's lien is controlled by Section 49-35a of the Conn. Gen. Stat. The burden of proof at such a hearing is controlled by Section 49-35b of the Conn. Gen. Stat. At such a hearing, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. If probable cause is established, the person who is subject to the lien, shall be heard and may prove by clear and convincing evidence that the validity of a lien should not be sustained, or the amount of the lien claimed is excessive and should be reduced.
A mechanic's lien pursuant to Gen. Stat. § 49-34 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, lot or plot of land is situated a certificate in writing which shall be recorded by the Town Clerk with deeds of land." The sole issue before the court at this time is whether the certificate recorded on December 7, 2005 was recorded within ninety days after Madore ceased performing services or furnishing materials.
It was clear at the hearing on this matter that there was a written contract between Levesque and Madore. Despite the fact the court twice inquired about the contract, the contract was never entered into evidence and the court has no information concerning the contents of the written contract.
At the hearing, the following exchange took place:
By Attorney Lawler:
Q. Your job was to specifically create the sub-base for the road?
A. Correct. To get a rough grade for the paver to come within an inch of final pavement.
Q. And the end of the job would be the paving on top of the work that was completed?
A. The end of it, yes, would be when it was prepped for the paver to come in.
Q. And do you recall when you were done prepping for the paver to come in to pave the job?
A. Probably mid-August of 2005.
[Transcript February 14, 2006, pgs. 4-5]
The evidence is clear that the road was accepted by the Town in mid-September of 2005. The evidence is unclear as to exactly what work was done between mid-August of 2005 and September 8, 2005, and if so, was it part of the contract?
The transcript of Mr. Madore contains the following testimony:
Q. Did you perform any other work on the property?
A. Yeah. I was responsible for sediment control, water runoff. I was there on a normal basis checking, every time it rained, straightening hay bales out, making sure the silt fence was up, making sure that Dennis Murphy had his silt fence up which I occasionally looked at. The next guy down the road, Billy, had his silt fence that really wasn't installed properly, so I straightened the silt fence out, checked all the swales.
Q. Do these C — would these tasks, straightening out silt fences and controlling the erosion and sedimentation, are those within your job on the property?
A. Yes.
Q. That was your responsibility?
A. It was my responsibility right up until the Town accepted the road.
Q. It was your responsibility, you believe, pursuant to your contract with Mr. Levesque?
A. Yes.
[Transcript, February 14, 2006, pgs 5-6]
The court's inquiry about the written contract was motivated in large part by the claim that the monitoring and placing of hay bales was within the contract.
Mr. Madore was asked the following questions:
Q. Okay. How many days do you claim you were on the property in September?
A. In September, I fixed a drainage swale by Ms. Zimmerman's. Transcript 13-14 . . .
Q. And who requested that you do this? [repair the swale on the Zimmerman property]
A. Ms. Zimmerman was concerned because the water does run very close to her house off that swale, and the Town Sanitarian requested that the water was going around the swale.
Q. But who asked you to do this?
A. I was asked by the Town Sanitarian to take care of the matter.
Q. Which you took care of on or about September 20th?
A. Yes.
[Transcript, February 14, 2006, pg. 6]
The leading modern case on the completion of work and the timeliness of mechanic's liens is F.B. Mattson's Company, Inc. v. Tarte, 247 Conn. 234 (1998). In that case, the trial court ruled in favor of the contractor. The Appellate Court reversed the trial court judgment. F.B. Mattson v. Tarte, 47 Conn.App. 265 (1997). Upon the granting of cert., the Supreme Court reversed the Appellate Court and remanded the case with directions to affirm the judgment of the trial court.
In Tarte, two persons employed by the plaintiff contractor, a carpenter and a carpenter's apprentice, worked all day removing scaffolding and roofing brackets from the property. The work was done at the request of Tarte. The Supreme Court found that this was significant work. The issue before the court was whether the completion of services occurred when the work was substantially completed on October 3, 1995, or on the date on which the plaintiff, at the defendant's request, removed the scaffolding and roofing brackets from the property. The court stated the test as follows:
Thus, in order for the date on which a contractor ceased "performing . . . service or furnishing . . . materials" within the meaning of Section 49-34 to be computed as the date of substantial completion, rather than as a date upon which services or materials actually were last rented or furnished, the following conditions must be satisfied: (1) the contractor must have unreasonably delayed final completion; and (2) any services or materials rendered by the contractor subsequent to the date of substantial completion must have been furnished at the contractor's initiative rather than at the owner's request. Tarte at pg. 240.
It is not clear to the court that any substantial work was done or any services were rendered after mid-August 2005. It is relatively clear that if any services or materials were rendered by the contractor subsequent to the date of substantial completion, those services or materials were not rendered at the owner's request. It is not entirely clear what the requirement that the contractor must have unreasonably delayed final completion entails.
Three recent cases have considered the question of trivial services or materials subsequent to substantial completion. None of those cases discusses the question of the contractor's unreasonably delaying final completion. See S.J. Yellen Bldr. Cons. C. Mgt., LLC v. Hitter, Superior Court, judicial district of Litchfield, Docket No. CV99-0080578 (August 18, 2000, DiPentima, J.). Tougher Industries, Inc. v. Learning Corridor Corp., Superior Court, judicial district of Hartford, Docket No. CV02-0819779 (March 19, 2003, Berger, J.) ( 34 Conn. L. Rptr. 433). Skirmont v. Drapp, Superior Court, judicial district of Fairfield, Docket No. CV01-0386982 (December 18, 2002, Rush, J.).
The court finds that the Madore contract was substantially completed with the paving of the roads in mid-August 2005. It is unclear what, if any, additional work may have been done other than the Zimmerman repair which was not requested by the owner. The contract appears to have been for preparing the sub-base for roads in the subdivision. It is not clear that any of the other work was within the contract and the sub-base for the roads was clearly completed in mid-August of 2005. The lien which was filed on the Middlefield land records states that work was commenced on or before November 1, 2004 and "ceased furnishing such materials and services on or about September 8, 2005." There is nothing in the evidence which gives any particular significance to September 8 other than the fact that it is the precise day which would make claiming of a mechanic's lien on December 7 timely.
The court finds that the mechanic's lien in question was not filed within ninety days of "substantial completion" as that term is analyzed in Tarte.
The foregoing application for the discharge of the mechanic's lien, having been heard by the court, it is hereby ordered that the validity of the lien, not having been established, the application to discharge is granted.
This court considered only the timeliness of the mechanic's lien. The court is aware that there is a dispute among the parties concerning the value of services rendered. The court took no evidence on this matter and in no way expresses an opinion whether Madore has a valid claim against Levesque or even whether Madore could sustain a showing of probable cause in a hearing for an attachment.