Opinion
No. KNL-CV08-5008160S
May 4, 2010
MEMORANDUM OF DECISION
I. Procedural Background
This vigorously contested matter involves an action by the plaintiff, Target Builders, LLC (hereafter "plaintiff") to foreclose a mechanic's lien on property of the defendant, Li Rong Zhao, (hereafter defendant) located at 33 Broadview Avenue, Montville, Connecticut, (hereafter "the property").
The plaintiff's single-count complaint, dated July 18, 2008, alleges that there had been a contract to build a house between the plaintiff builder and the defendant owner and that there remained $9,000 due to the plaintiff. It further alleges that a lien has been filed and requests the foreclosure of that lien. The defendant appeared by counsel, filed an answer, dated October 2, 2008, which contained special defenses and counterclaims. The matter came to trial before this court, at New London, on March 17, 2010. After the evidence was completed the parties filed briefs on or about April 14, 2010.
II Findings of Fact
From the evidence produced at trial, and the reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following facts are found.
The plaintiff contracted to build a new home for the defendant at 33 Broadview Avenue, Montville, Connecticut, for the sum of One Hundred Ninety Thousand Dollars ($190,000.00).
The plaintiff had a State of Connecticut Builder's License which was entered as Plaintiff's Exhibit 1. The home was to be built pursuant to a contract which was entered into evidence in two parts (Plaintiff's Exhibit 2 and Defendant's Exhibits C-1 and C-2). No copy of his certificate of registration or the notice required by § 20-417d of the General Statutes was provided to the defendant by the plaintiff.
The defendant obtained the plans for the house from a publication which included a drawing of what the house was to look like. It was a design which was specifically identified by the parties in the contract as a "#1410 house." This specific provision meant that the construction was to be in accordance with the plan identified as the #1410 plan. When the plan had been submitted to the town building official, however, several changes had been made by the plaintiff. Several changes were also made during construction some of which were with the agreement of both parties. There were no written change orders. The evidence is conflicting and inconclusive as to which changes were agreed upon and which were not.
The defendant was present at the site during many of the days the work was progressing. Payments were made by the defendant to the plaintiff according to a schedule provided for in the contract during the construction in stages as the work progressed. A total of $181,000 was paid in this manner over a period from June 25, 2006, to May 19, 2007. At the end, however, the final payment was not completely made when the defendant made known his dissatisfaction with some of the deviations from the #1410 plan depiction. An examination of the photograph of the completed home (Plaintiff's Exhibit B1) compared with the #1410 plans (Defendant's Exhibit A) make it clear that there are many deviations from the plan as it relates to the appearance of the same. The home was, nevertheless, completed by plaintiff in compliance with all applicable State and local building codes. A Certificate of Occupancy was issued by the town of Montville (Plaintiff's Exhibit 3) on or about May 18, 2007.
There is no chimney in the house as constructed. The contract (Plaintiff's Exhibit 2) states on page three that there is no fireplace but is silent as to the chimney. The drawing in the #1410 plan shows a chimney.
Defendant changed the plans to the house by removing one of the garage doors and replacing it with a smaller door and walls. This was done because he was going to use the basement for residential space. The Town Approved Plans (Plaintiff's Exhibit 4), show the single garage door. The front door steps are not like the outside drawing in the #1410 plan because the slope of the land at the property is not the same as the slope shown in the drawing. The contract, however, makes no specific mention of the front steps. The defendant's evidence indicating it would cost $6,500.00 to do the steps the way the drawing showed them was not credible. Some windows are not as shown on the plan.
The plaintiff did not complete the construction of the house in accordance with the terms of the contract.
There is not credible evidence as to any damages sustained by the defendant as a result of the deviations from the contract by the plaintiff.
A mechanic's lien was filed by the plaintiff on the land records with respect to the defendant's property for the claimed services which were unpaid in relation to the construction of the house.
III. Claims of the Parties
The plaintiff has claimed that it has complied with the requirements of the contract in that the defendant agreed with or requested all the changes during construction, and is due $9,000 for which its lien should be foreclosed.
The defendant asserts defenses based upon an alleged breach of contract by the plaintiff and an unworkmanlike performance by the plaintiff. Also, in his brief, the defendant claims for the first time that the lien is invalid because it is not under oath as required by the statute. This claim is made even though the defendant in his answer has admitted the plaintiff's allegation in paragraph 5 of the complaint that the lien has been "sworn to."
The defendant claims that the plaintiff has failed in its proof as to the compliance with the terms of the contract and that therefore it is not entitled to foreclose the mechanic's lien. The defendant also has alleged both special defenses and a counterclaim. The special defense is that the plaintiff's failure to provide information required by statute (Connecticut General Statutes § 20-417a et seq) was a condition precedent to the formation of an enforceable agreement. That claim, however, as well as the other special defenses, have not been briefed and are considered abandoned. In his counterclaim, the defendant alleges a violation of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42a-110 et seq. in that the plaintiff failed to comply with various disclosure provisions of the Connecticut New Home Construction Act, Connecticut General Statutes § 20-217(d)(a)(1) and § 20-217b. The defendant alleges that he is in the class protected by the Unfair Trade Practices Act.
IV. The Law
"A mechanic's lien is a creature of statute." Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Swift Upson Lumber Co. v. Hatch Co., 115 Conn. 494, 498, 162 A.19 (1932). Its remedial purpose is to furnish security for a contractor's labor and materials. Camputaro v. Stuart Hardwood Corporation, supra; Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954). General Statutes § 49-33(a) governs the availability of mechanic's liens and provides protection to those lienors who have an agreement with or consent of the owner of the land or of some person having authority from or rightfully acting for the owner. Hall v. Peacock Fixture Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984); Seaman v. Climate Control Corporation, 181 Conn. 592, 595, 436 A.2d 271 (1980).
General Statutes § 49-33a provides in pertinent part: "If a person has a claim for more than ten dollars for . . . services rendered . . . 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 . . . or of some person having authority from or rightfully acting for the owner . . . then the plot of land is subject to the payment of the claims."
The plaintiff bears the burden of proving its claims by a preponderance of the evidence, as does the defendant with respect to his special defenses and counterclaims. See Northrop v. Allstate Ins. Co., 247 Conn. 242, 253-54 (1998); Branch v. Occhionero, 239 Conn. 199 (1996).
A builder who has failed to complete his contract fully may not invoke its benefit unless he was prevented from doing so by some circumstances beyond his control, such as interference by the owner. Vinzenzi v. Cerro, 186 Conn. 612, 615, 442 A.2d 1352 (1982). The determination of whether a building contract has been substantially performed is a question of fact. Argentis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078 (1990); Camelot Modular Homes, Inc. v. Freska, 2008 Ct.Sup. 12528 (Aurigemma, J.); Pisani Const. v. Krueger, 68 Conn.App. 361 (2002).
Our Supreme Court has recently outlined the law with regard to the New Home Construction Contractors Act in the case of D'Angelo Development Construction Co. v. Cordovano, 278 Conn. 237 (2006), where it said in pertinent part: ". . . The New Home Construction Contractors Act, which took effect on October 1, 1999, regulates the activities of new home construction contractors. The act requires a contractor to obtain a certificate of registration from the commissioner of consumer protection (hereafter "commissioner") before he or she may "engage in the business of new home construction or hold himself or herself out as a new home construction contractor . . ." General Statutes § 20-417b(a). The act also specifies the circumstances under which the commissioner may revoke, suspend or refuse to issue or renew a certificate of registration. See General Statutes § 20-417c. Other provisions of the act affirmatively regulate the conduct of new home construction contractors, prohibit new home construction contractors from engaging in certain activities and set forth various requirements as to the format and content of new home construction contracts.
The act further provides three distinct penalties for a violation of its provisions. Finally, the act provides that a violation of any of its provisions "shall be deemed an unfair or deceptive trade practice under subsection (a) of Section 42-110b"; General Statutes § 20-417g; thereby exposing the violator to a private lawsuit under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq . . ."
The Connecticut New Home Construction Act, Connecticut General Statutes § 20-417a et seq. does not effect the enforceability of contracts that fail to comply with statutory requirements. D'Angelo Dev. Construction Company v. Steven P. Cordovano et al., 278 CT 237 (May 2006). However, § 20-417g does provide that a violation of that Act "shall be deemed an unfair or deceptive trade practice under subsection (a) of Section 42-110b" of the General Statutes (CUTPA). § 42-110g of the General Statutes permits those who suffer "ascertainable loss of money or property" to bring an action for damages under the Act. It also gives courts discretion to award attorneys fees and costs, equitable relief and punitive damages if deemed proper.
Generally, "[t]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." Mercer v. Cosley, 110 Conn.App. 283, 301, 955 A.2d 550 (2008).
Furthermore, "[a] judicial admission is [a]n express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it . . . It is, in truth, a substitute for evidence, in that it does away with the need for evidence." (Internal quotation marks omitted.) Lesser v. Lesser, 16 Conn.App. 513, 517-18, 548 A.2d 6, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).
Admissions in the answer can be taken advantage of even if evidence is admitted and controverted on the subject. Guiel v. Barnes, 100 Conn. 737, 742-43, 125 A.91 (1924).
V. Conclusion; Judgment
Applying the law to the facts found and giving consideration to the briefs of the parties, the court reaches the following conclusions.
The court finds that the plaintiff has not sustained its burden of proof with respect to the allegations of the complaint as to its performance of the contract and its entitlement to the sum claimed. Both parties were not clear in the evidence as to what was and what was not required or intended. Documentation was lacking. Credibility was also in doubt as to the various claims. Therefore, the court will decline to foreclose the mechanic's lien and will order the same to be discharged and released. Judgment may enter for the defendant on the complaint.
Because of the conclusion of the court with respect to the complaint, it is not necessary to address the special defenses, but it will be noted that the court considered the defendant's claims with respect to the lien certificate oath to have been waived by his judicial admission in the answer.
The defendant's counterclaim against the plaintiff for failure to comply with the requirements of the New Home Construction Contractors Act does not avail the defendant. First, that act has been held not to provide a separate cause of action for its violation. Secondly, there was no credible evidence as to any ascertainable damages flowing from its violation or the CUTPA violation that results. The court has given consideration to the request to award attorneys fees and costs under that statute. In the exercise of that discretion, however, considering and balancing the interests of the parties, their respective participation in the misunderstandings that gave rise to this litigation and the evidence relating to the construction of the house, the court declines to make such an award.
No credible evidence was offered as to the second count of the counterclaim with respect to defamation either on the issue of liability or damages.
Accordingly, judgment may enter for the plaintiff on the defendant's counterclaim.
IT IS SO ORDERED.