Opinion
MMXCV166015117
05-05-2016
The Yard Group Landscaping, LLC v. River Highlands Home-Owners Association, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISCHARGE MECHANIC'S LIEN
Julia L. Aurigemma, J.
The defendants, The River Highlands Homeowners Association, Inc. (" Association") and White & Katzman Management, Inc. (" White & Katzman"), have filed a motion to discharge the mechanic's lien filed by the plaintiff, Yard Group Landscaping, LLC (" Yard Group"), on the grounds that there is not probable cause to sustain the validity of the lien in that the services provided are not subject to a mechanic's lien and the plaintiff has failed to properly give notice to all affected property owners.
Factual and Procedural Background
On June 7, 2015 Yard Group placed a mechanic's lien on real property in Cromwell, Connecticut owned by the Association and its individual unit owners. The plaintiff served the lien on the Association and White & Katzman but did not serve the individual unit owners. The amount of the lien is $134,334.42. It references an agreement between the lienor and the Association dated March 18, 2011 (the " Agreement").
The Annual Fee stated in the Agreement is $270,000 plus tax, which is payable monthly from April through November at the rate of $33,750.00 plus tax. The Agreement provides for Spring Cleanup, which includes:
1. A general cleaning of the entire grounds, shrub beds, lawn areas, patios, walkways, etc.; . . . This includes pick-up and removal or all foreign garbage and debris, edging and weeding of all shrub beds and patios and the removal of all sand from driveways, roads, parking areas and walkways.
2. Topsoil and seed in lawn areas damaged by snow removal services or normal conditions such as areas damaged along roadways and corners. This will be billed as an extra . . .
The Agreement also provides for Fall Cleanup, Lawn Maintenance, Lawn Care, Shrub and Tree Maintenance, Shrub and Tree Care, Irrigation Maintenance and Additional Services. The Additional Services portion of the contract provides " Annual flower plantings will be performed on a time plus material cost basis."
Prior to the hearing on the Application to Discharge Mechanic's Lien, the plaintiff's counsel stipulated that a portion of the lien reflected amounts charged for snow removal, and conceded that those amounts were not lienable under Connecticut General Statutes § 49-33. The plaintiff introduced three invoices into evidence at the hearing. The first is dated 9/1/2015 and seeks payment in the amount of $35,893.13 ($33,750.00 plus sales tax of $2,143.13) for " Seasonal Contract: 7 of 8." The second invoice is dated 10/1/2015 and seeks payment in the amount of $35,893.13 for " Seasonal Contract: 8 of 8." The third invoice is dated 10/31/2015 in the amount of $1,349.05 and seeks payment for planting several trees and bushes, removing shrubs, planting 6 " Arbs, " removing Cedar, vines and scrub brush, planting " Rhody, " and removing a stump.
The defendants presented evidence showing that they had not paid the first two invoices, which total $71,786.26, and that they had paid the full amount of the third invoice, $1,349.05.
Discussion of the Law and Ruling
In Ceci Brothers, Inc. v. Five Twenty-One Corporation, 51 Conn.App. 773, 724 A.2d 541 (1999), the court held that services and materials supplied pursuant to a landscape maintenance contract similar to the one at issue here were not lienable under § 49-33. The court in Ceci Brothers described the agreement in that case as follows:
Pursuant to the maintenance agreement, the plaintiff agreed to perform the following services: remove leaves and other miscellaneous debris from the property; uncover, clean and scrub the swimming pool; clean and scrub the fountain; mow, fertilize, aerate and dethatch the lawn; remove grass clippings; plant and maintain annual flowers and vegetables; prune shrubs; remove weeds from flower beds, mulched areas and gardens; edge shrub beds and walks; water lawn, flowers and vegetables; and clean gutters and drains. Additionally, the agreement provided that " [a]ll necessary equipment, fuel and repairs on all equipment will be provided by [the plaintiff] . . . Any and all types of landscape materials needed on the [defendant's] estate will be supplied by the [defendant]. Some of the materials that may be needed are listed as follows: fertilizers, plant food, grass seeds, topsoil, mulch, wood chips, sod, plants, perennials, flowers and vegetable garden plants."Ceci Brothers, Inc. v. Five Twenty-One Corporation, 51 Conn.App. at 775 n.2.
In Ceci Brothers the defendants filed an application to discharge mechanic's lien. They claimed that the services performed by the plaintiff were not lienable under § 49-33 because they were not " 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 . . ." within the meaning of § 49-33(a). The trial court denied the application.
The Appellate Court agreed with the defendants, stating that landscaping services, which included the planting of trees and flowers, did not constitute an " improvement" to the liened property within the meaning of § 49-33(a):
" In 1974, the legislature extended the reach of a mechanic's lien, under § 49-33, to encompass claims for materials furnished or services rendered 'in the improvement of any lot or in the site development or subdivision of any plot of land . . .' Public Acts 1974, No. 74-310, § 1." Id., at 377-78, 696 A.2d 326. The plaintiff claims that its " extensive landscaping and maintenance services fall within the statutory construct of an 'improvement [of] any lot.'" Our Supreme Court's decision in Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., supra, 217 Conn. 361, 585 A.2d 1210, establishes, however, that the plaintiff did not render services " in the improvement of any lot" within the ambit of § 49-33(a).
In Nickel Mine Brook Associates, the defendant claimed " that within the context of § 49-33, 'improvement' means anything that increases the value of the land." Id., at 370, 585 A.2d 1210. In rejecting the defendant's interpretation, our Supreme Court held that " neither the language of the 1974 amendment nor its legislative history indicates that the legislature intended to create such an open-ended test for which services are lienable under § 49-33(a)." Id. Instead, the Supreme Court held " that the phrase ' improvement of any lot ' was intended to include the same types of services embraced by the phrase ' site development or subdivision of any plot of land .' The only distinction intended by the legislature was between services benefiting particular lots and those benefiting the subdivision as a whole." (Emphasis added.) Id., at 367, 585 A.2d 1210.4
The decision in Nickel Mine Brook Associates establishes that the category of services that falls within the meaning of " improvement of any lot" includes only those services rendered for the purpose of subdividing or site developing a plot of land. In the present case, the plaintiff neither claims, nor does the maintenance agreement evidence, that the plaintiff rendered any services for the site development or subdivision of the defendant's real property. We conclude, therefore, that the services provided by the plaintiff did not constitute services rendered for the " improvement of any lot" within the ambit of § 49-33(a).Ceci Brothers, Inc. v. Five Twenty-One Corporation, 51 Conn.App. at 778-81. Emphasis added.
Based on the foregoing, the services provided by the plaintiff did not constitute an " improvement" within the meaning of § 49-33 and, therefore the application to discharge the mechanic's lien is granted.