Scott S. Stogel et al. v. Ioannis M. Papakosmas et al. (2010)

MEMORANDUM OF DECISION

This case comes to this court on an application for discharge or reduction of mechanic's lien.   The relief sought in the order is dissolving the lien.   The court heard the testimony of Scott Stogel and Ioannis M. Papkosmas.   The court has reviewed the exhibits introduced into evidence.

The action is brought pursuant to Conn. Gen.Stat. § 49-35a which provides for an application for reduction or discharge of a mechanic's lien.   The form set forth in the statute has been followed.

Under Conn. Gen.Stat. § 49-35b the burden of proof is set forth at the hearing.   The lienor (Papakosmas) has to establish probable cause to sustain the validity of his lien.   Thereafter, the applicant (Stogels) must prove by clear and convincing evidence that which they sought in their application is true.

In this case the court finds that there was probable cause to sustain the validity of the lien.   The court finds that the applicants have established by clear and convincing evidence that the lien should be discharged.   The court finds that the exchange of checks by the applicant to the lienor, being exhibits 5 and 6, totaled $1,427.50.   The court finds that there was an accord and satisfaction based on the discussions of the parties.   The more credible evidence is that the lienor accepted these two payments in full settlement of the claim although he did so begrudgingly.

The application and the order seek only the discharge of the lien and does not address the oral relief sought at the hearing under § 49-51.   Until the claim for attorneys fees as set forth in exhibit 12 was handed to the lienor at the conclusion of the evidence he was not aware of this claim nor was the court.   He proceeded pro se in this matter.   The likelihood is that had he known there was exposure to $4,336.18 in attorneys fees and other relief as provided in the statute that he very likely would have obtained an attorney or sought further legal advice.

The court does not find quantifiable damages for the failure to release the lien when requested.   In addition, the court does not find that the certificate of lien was filed without just cause and therefore it awards no attorneys fees.

Accordingly, it is further ordered that the mechanic's lien as filed in Volume 3043 at Pages 60-62 of the Westport Land Records is discharged by operation of the law.

So Ordered.

THE COURT

Hon. Edward R. Karazin, Jr.

Judge Trial Referee

Karazin, Edward R., J.T.R.