Opinion
No. CV05-4004694-S
June 16, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S APPLICATION FOR DISCHARGE OR REDUCTION OF MECHANIC'S LIEN (NO. 112)
This is an action for foreclosure of a mechanic's lien filed against property known as 165 Mason Street in Greenwich, owned by the defendant. The plaintiff is a licensed architect, claiming $11,810.50 for fees allegedly earned but unpaid for services rendered with respect to the property. The defendant has moved pursuant to Conn. Gen. Stat. § 49-35a(c) that the lien be discharged or reduced. A hearing on the defendant's motion was held in this Court on August 8, 2005. Under the provisions of Conn. Gen Stat. § 49-35b, "the lienor [here, the plaintiff] shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under § 49-35a [here, the defendant] 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. Under this statute it has been held that the plaintiff has the initial burden to show probable cause to sustain the validity of the lien, and then, if that burden is satisfied, the defendant has the burden of proof by clear and convincing evidence that the lien is invalid. Pomarico v. Gary Construction, Inc., 5 Conn.App. 106 (1985). The plaintiff's initial burden of probable cause is analogous to the probable cause burden of a plaintiff seeking a prejudgment remedy pursuant to Conn. Gen. Stat. § 52-278a et seq. Pero Building Company v. Smith. 6 Conn.App. 180, 182 (1986). That burden has been stated as follows: "The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence, and judgment, under the circumstances, in entertaining it." Id., 6 Conn.App. at 183.
§ 49-35a(a) authorizes the owner of the liened property to make application to the Superior Court, if no action to foreclose the lien is then pending, that a hearing be held to determine whether the lien should be discharged or reduced. If, as here, a foreclosure case has already been commenced, subsection (c) permits any party at any time prior to trial to move for a discharge or reduction of the lien.
The undersigned was not the judge before whom the hearing was held. This case was assigned to the undersigned for decision pursuant to Practice Book § 11-19(b). The undersigned has reviewed a complete transcript of the hearing of August 8, 2005 and the exhibits received into evidence at that hearing, and has also reviewed the memoranda of law submitted by the parties. On June 15, 2006 counsel for the defendant called the Court's attention to the dictum in Gorelick v. Montenaro. 94 Conn.App. 14, n. 14 (2006) concerning the constitutional right of the parties to have judgment entered by the judge who tried the case. In that case, the Appellate Court confirmed that "The due process concern, however, is not present when parties have stipulated to a decision by a successor judge, who will act on the basis of a review of the evidence that was before the original judge. See, Nahas v. Nahas. 25 Conn.App. 595, 597, n. 1, 595 A.2d 926 (1991)." Id. In this case both counsel stipulated in court of February 17, 2006 that this case would be reassigned to the undersigned "to be taken on the papers," which stipulation was reconfirmed in open court on June 15, 2006. In view of this stipulation and the provisions of Practice Book § 11-19, the undersigned has proceeded to decide the pending motion on the papers.
Discussion CT Page 11218
There is no dispute over the fact that the plaintiff caused a Certificate of Mechanic's Lien properly describing the defendant's building involved in this litigation to be timely recorded on the Greenwich land records. Nor is there any dispute over the plaintiff's claim that the parties entered into a written contract of June 22, 2004 (Exhibit 3) for architectural services at the building and that the plaintiff did perform services for which he has submitted invoices to the defendant which remain unpaid to the extent of $11,810.50. The only disputed issues raised and briefed by the parties are (A) whether or not the Certificate of Mechanic's Lien was properly "subscribed and sworn to" as required by statute; (B) whether or not the services performed by the plaintiff are lienable services under the mechanic's lien statute; and (C) whether or not the plaintiff gave the defendant a credit for 20 hours free time as agreed in the contract. These issues will be discussed separately. The first two issues are matters of statutory interpretation to be decided by the Court. The third issue is a question of fact on which the plaintiff has the initial burden of showing probable cause.A. Signature Under Oath
The first point raised by the defendant is a claim that the recorded Certificate of Mechanic's Lien is invalid because it is not "subscribed and sworn to by the claimant" as required by Conn. Gen. Stat. § 49-34. The plaintiff's Certificate of Mechanic's Lien (Exhibit 7) is signed by the plaintiff beneath the following statement: "IN WITNESS WHEREOF Harvey Weber has hereunto caused this Certificate to be executed under oath this 1st day of October 2004." Immediately after the plaintiff's signature the Certificate contains the following clause signed by Jennifer A. Basciano, Commissioner of the Superior Court:
§ 49-34 sets forth the requirements of a valid mechanic's lien and states, in relevant part, as follows: "A mechanic's lien 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 . . . (C) subscribed and sworn to by the claimant, and . . ."
STATE OF CONNECTICUT
SS Stamford October 1, 2004
COUNTY OF FAIRFIELD
Personally appeared Harvey Weber d/b/a Weber Associates proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and that he, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing his name and who made solemn oath that the facts stated therein are true and that the amount above named is justly due and owing to the said Harvey Weber d/b/a Weber Associates, as nearly as the same can be ascertained, before me, the undersigned officer.
There was undisputed testimony from the plaintiff, and the Court finds, that the plaintiff Harvey Weber signed the Certificate of Mechanic's Lien in the presence of Attorney Basciano and that, before he signed it, Atty. Basciano reviewed with him the contents of the document, asked him to raise his right hand, asked him whether he swore to the truth of that statement and that the facts stated therein were true, and he acknowledged to her that it was the truth. (Transcript 8/8/05, p. 33, p. 122.)
In Red Rooster Construction Co. v. River Associates, 224 Conn. 563 (1993) the Supreme Court affirmed the trial court's invalidation of a certificate of Mechanic's lien for failure to comply with Conn. Gen. Stat. § 49-34(C) because (1) the notary public had not administered an oral oath to the president of Red River Construction Company when he signed the certificate; (2) the president had not signed an statement swearing to the truth of the facts contained in the certificate, and (3) that there was no "ceremony" performed in making an oath as required by Conn. Gen. Stat. § 1-22. See, 224 Conn. at 579. The Court held that the first and third requirements were not satisfied in view of the notary's undisputed testimony at trial that, except for signing the clause reciting that an oath had been given, the notary had not actually administered any oath. The president's signature on the certificate was not preceded by any statement that he was swearing to the facts stated therein and the Court held that the president's signature on a document that included the notary's signed statement (admitted to be untrue) on the document that the president had "personally appeared and made solemn oath that the facts stated herein are true . . ." did not satisfy the second requirement. In the case at bar Red Rooster's first and third requirements are clearly satisfied. The Court has found that Atty. Basciano did administer an oral oath to Mr. Weber before he signed the certificate, and that in doing so she had reviewed with him the facts stated in the certificate, asked him to raise his right hand, and had him swear to the truth of those facts, which is the recommended form of "ceremony" under Conn. Gen. Stat. § 1-22. The only issue, then, is whether or not Mr. Weber satisfied Red Rooster's second requirement by stating in writing just prior to his signature: "IN WITNESS WHEREOF, Harvey Weber has hereunto caused this Certificate to be executed under oath this 1st day of October 2004." (Emphasis added.) (Exhibit 7.) This Court holds that the quoted language does satisfy the requirement of a statement swearing to the truth of the facts contained in the certificate.
§ 1-22 entitled "ceremony" provides: "The ceremony to be used, by persons to whom an oath is administered, shall be the holding up of the right hand; . . . but such court or authority may permit or require any other ceremony to be used."
The Red Rooster requirements were recently at issue in Louis Gerhlone Excavating, Inc. v. McLean Construction Company, 88 Conn.App. 775 (2005) Cert. Granted 274 Conn. 909 (2005) (Appeal withdrawn February 3, 2006). In Gerhlone. the plaintiff's signatory had simply signed the Certificate of Mechanic's Lien without any prefatory recitation or reference to making an oath or stating that the facts stated therein were true, and a notary public had signed a statement that the document was "subscribed and sworn to before me" by the signatory. Unlike Red Rooster. however, the Gerhlone signatory attested by affidavit filed in the trial court that he had read the lien before executing it, signed the lien, and then was asked to raise his right hand by his attorney who was also a notary public and was asked to swear under oath that he read the contents of the Mechanic's Lien and that statements contained in the lien were . . . "true and accurate to the best of my knowledge, so help me God, to which I answered yes." Id., 88 Conn.App. at 785, n. 5. The Appellate Court nonetheless held that the lien was invalid for lack of any statement by the signatory in writing in the document that the facts recited therein were true. After reviewing Red Rooster and J.C. Penney Properties, Inc. v. Santella, 210 Conn. 511 (1989) and other relevant cases the Appellate Court said: "Each of these cases held, under facts similar to those presented here, that the words `sworn to' [in § 49-34] imply that the subscriber shall declare upon oath the truth of the statement to which his or her name is subscribed." (Emphasis added.) 88 Conn.App. at 783. Mr. Weber's written statement that he executed "this Certificate" "under oath" on October 1, 2004 coupled with a certification of unchallenged veracity from Atty. Bosciano, an officer of this Court, that on October 1, 2004 before her Mr. Weber had . . . "made solemn oath that the facts stated therein are true . . ." is sufficient to satisfy the statutory requirement of a certificate "subscribed and sworn to by the claimant" under the holdings of Red River and Gherlone. Granted, the statement could have been more explicit or expansive by stating, that "I swear on my oath that the facts stated in the foregoing certificate are true" (which the defendant's memorandum of law suggests to be the requirement), but there is no requirement in § 49-34 or any appellate case of any particular language. In construing the language of documents, ". . . the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter." William Raveis Real Estate v. Newtown Group Properties. 95 Conn.App. 772, 776 (2006). When Mr. Weber has said that he has signed "this Certificate" "under oath" the common natural and ordinary meaning of those words is that he is swearing under oath to the truth of the facts set forth in the Certificate. This result is also consistent with the established principle that ". . . 49-34 is to be construed so as to reasonably and fairly carry out its remedial intent." Gehrlone. supra. 88 Conn.App. at 784.
The Court therefore rules in favor of the plaintiff on this point.
B. Lienable Services
The defendant claims, with particular reference to certain computerized renderings of what the defendant's completed building would look like to a person driving past on Mason Street that the plaintiff's services do not qualify for a mechanic's lien under our statute. Citing Thompson Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370 (1997) defendant argues that in order to be lienable under Conn. Gen Stat. § 49-33 services must have "enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property, or played an essential part in the scheme of physical improvement of the property . . ." Id., 241 Conn. at 372 and 374. (Claim for insurance premiums for workers' compensation and general employer liability coverage of a subcontractor who worked at a property does not qualify for a mechanic's lien against the property.)
Conn. Gen. Stat. § 49-33 provides:
(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 has been erected or has been moved, 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 upon 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.
It has been held generally that § 49-33 applies to the claims of a "mechanic" which has been defined as a "skilled worker who brings about a result by the use of tools, machines, or equipment." Nickel Mine Brook Associates v. Joseph E. Sakal, P.C. 217 Conn. 361, 369 (1991). In holding that the legal services of an attorney are not lienable under § 49-33, the Supreme Court in Nickel Mine Brook had occasion to refer to the legislative history to the 1974 amendment to the statute which added the words ". . . or in the improvement of any lot or in the site development or subdivision of any plot of land . . ." and said, in dictum, that "references therein to surveyors and engineers who draft subdivision plans provide some evidence of the types of services that might be embraced by the amendment." Id., 217 Conn. at 369. Nickel Mine Brook left open the question whether or not the services rendered must always be connected to some physical enhancement of the property or laid the groundwork for physical enhancement in order to fall within the scope of § 49-33(a) Id., 217 Conn. at 369, note 9. That question was answered in the affirmative with the addition of the words". . . or played an essential part in the scheme of physical improvement of the property" six years later in Thompson Peck, Inc. v. Division Drywall, Inc, supra 241 Conn. at 372. Although there is no appellate authority since Thompson Peck, Inc. applying the rule of that case to the services of an architect or engineer, there is Superior Court authority for the proposition that the services of an architect or engineer in preparing plans for the development of a property are lienable under § 49-33 even if no actual construction has occurred on the parcel as a result of the plans if the plans were used in applications for zoning or subdivision approvals or other permits Design Professionals, Inc. v. Eugene Sammartino, Trustee, CT Page 11223 1994 Ct.Sup. 1827, Docket No. CV91 47234S, Superior Court, Judicial District of Tolland at Rockville, (Klaczak, J., February 24, 1994) ( 11 Conn. L. Rptr. 99); Angus McDonald/Gray Sharpe Associates, Inc. v. Lewis Associates I et al, 1992 WL 335326 (Conn.Super 1992), Docket No. 59790, Superior Court Judicial District of Middlesex, (Higgens, J., November 10, 1992), or even if no approvals have been obtained and no building permit has been applied for, Sisk v. Zukowski, 14 CLT 33, Docket No. 346699, Superior Court, Judicial District of Hartford-New Britain at Hartford (O'Neill, J., June 29, 1998). ("Various parts of the statute make it clear that for a lien to attach as to some kinds of work, some improvement on the land must occur. That is not true of work done `in the site development or subdivision of any plot.'") In Angus McDonald/Gray Sharpe Associates, Inc., supra the holding of lienability was also based on a finding that the owner had used the plaintiff's plans as part of their offering of the premises for sale.
The word "mechanic" is not used in the text of § 49-33, but does appear in the official title of the statute: "Mechanic's lien. Precedence. Rights of Subcontractors."
The reference was to the discussion in the House, where Representative Kablic inquired about the lienability of a claim by an engineer who had done the preliminary drawings for a subdivision which is turned down, and never occurs. "Would he then have a lien on the entire parcel even if the subdivision didn't occur?" Representative Brown responded in the affirmative. Nickel Mine Brook Associates, supra. 217 Conn. at 369, note 9.
The Court finds that the plaintiff Harvey Weber was engaged by an oral contract on or about May 7, 2004 followed by a June 22, 2004 written contact with the defendant Pascarella Mason Street, LLC to provide design services for the main lobby elevator upgrade, main floor bathroom upgrade, and the common areas of the building at 165 Mason Street in Greenwich, to include, without limitation, "as built" floor plans, preliminary new floor layout plans, detailed demolition plans and a "reflected ceiling plan." There were verbal supplements to the written agreement (as contemplated by the letter agreement of June 22, 2004 in the final paragraph following the signatures of the parties) whereby the plaintiff was engaged by the defendant to prepare drawings of individual rentable spaces for prospective tenants and to prepare for marketing purposes a three-dimensional computerized video model of what the completed building would look like to a person driving past the building on Mason Street. Such services were performed by the plaintiff in accordance with his engagement from on or about May 7, 2004 to on or about August 27, 2004. The plaintiff has submitted periodic invoices for his services based on the hourly rates specified in the contract which have been paid in part, but there is due and owing to the plaintiff an unpaid balance of $11,810.50. The plans and drawings and the computer model prepared by the plaintiff were utilized by the defendant in the application for building permit submitted to the Town of Greenwich for demolition of parts of the building or for purposes of marketing the property. The Court further finds that all of the foregoing services were part of the improvement or site development of the defendant's property, and that the plaintiff's services laid the groundwork for physical enhancement or played an essential part in the scheme of physical improvement of the defendant's property and are therefore lienable services under Conn. Gen. Stat. § 19-33(a). The plaintiff has caused to be property, and that the plaintiff's services laid the groundwork for physical enhancement or played an essential part in the scheme of physical improvement of the defendant's property and are therefore lienable services under Conn. Gen. Stat. § 49-33(a). The plaintiff has caused to be recorded on the Greenwich land records within ninety days following the completion of his services to the defendant a Certificate of Mechanic's Lien in the amount of $11,810.50 against the defendant's property at 165 Mason Street.
C. The Twenty-Hour Credit
The written agreement of June 22, 2004 provides, "I will provide a credit on your first monthly bill with 20 hours of my staff time (including mine) at no cost to you." The plaintiff allowed a credit or discount in the amount of $2,505 on the first monthly invoice submitted to the defendant for twenty hours of services performed (Exhibit 4, first page 3 calculated based on the agreed hourly rates of himself and his staff. Mr. Weber admitted in his testimony that about 13 or 14 hours of the 20-hour credit were performed in May of 2004 prior to the signature of the written agreement on June 22, 2004. It was his understanding — and the Court has found — that the plaintiff was first engaged by an oral acceptance on or about May 7, 2006 of the plaintiffs' written proposal of April 23, 2004. (Exhibit 1.) The defendant claims first, that by counting services performed prior to signing of the written agreement, the plaintiff tried to convert his activities prospecting for work into work done pursuant to the agreement which called for twenty hours to be done without charge and credited on the first bill, and, second that the plaintiff's testimony that he was working for the defendant prior to signing the June 22 contract violates the parol evidence rule. Mr. Weber testified, and the Court finds his testimony credible, that the hours put in prior to June 22, 2004 were expended in preparing preliminary drawings, and communicating the plaintiff in calculating the credit were all hours put in by Mr. Weber or his staff in carrying out their obligations under the contract which had been spelled out prior to June 22, 2004 in the written proposal and cover letter the plaintiff had sent to the defendant on or about April 23, 2004 (Ex. 1) which was accepted verbally on May 7. Nor was there any violation of the parol evidence rule in using the time expended prior to June 22 as part of the 20-hour credit. The parol evidence rule forbids the use of oral testimony to vary or contradict the written terms of a contract. Damora v. Crhist-Janer, 184 Conn. 109 (1981). The method used by the plaintiff to calculate the twenty-hour credit did not vary or contradict the terms of the written contract of June 22. The written contract provided that the first monthly bill would provide a credit for twenty hours of staff time (including Mr. Weber's time) at no cost to the defendant. The credit was in fact given on the first monthly bill dated July 1, 2004 (Exhibit 4, first page) for twenty hours of time devoted to services performed under this contract. There is no requirement in the written contract that the services had to be performed after the contract was signed. Even disregarding the Court's finding that those service were performed pursuant to an oral agreement, it was the plaintiff's prerogative to start working under the contract prior to the actual signing especially since the defendant's wife and representative had started sending design ideas to the plaintiff for his review and consideration prior to the signing of the written contract.
Order
The Court finds that the plaintiff has sustained his burden of showing probable cause to sustain the validity and amount of his mechanic's lien and that the defendant has not shown by clear and convincing evidence that the mechanic's lien is invalid or excessive. The Court rejects the defendant's legal claims that the Certificate of Mechanic's Lien was not properly sworn to, that the plaintiff's services were not lienable under the Connecticut mechanic's lien statute, and that the twenty-hour credit was not properly allowed. Accordingly, the defendant's Application for Discharge or Reduction of Mechanic's Lien (No. 112) is denied.
So Ordered.