Deborah McGhee-Fichtner d/b/a Veteran Builders Restoration v. Joseph Kusek et al (2010)

MEMORANDUM OF DECISION RE MOTION TO DISCHARGE MECHANIC'S LIEN [# 113]

FACTS

On February 10, 2009, the plaintiff, Deborah McGhee-Fichtner d/b/a Veteran Builders Restoration, filed a three-count complaint against the defendants, Joseph W. Kusek and SunTrust Mortgage, Inc. (SunTrust), for sums allegedly owed by Kusek for labor and materials rendered to property owned by Kusek, located at 369 Old Jewett City Road, Preston, Connecticut (the property).¹  In its complaint, the plaintiff alleges the following facts.   The plaintiff and Kusek entered a contract on June 26, 2007, pursuant to which the plaintiff furnished materials and rendered labor in the construction of improvements to the property.   The plaintiff commenced work on the property on July 20, 2007.   Kusek failed to pay the plaintiff all amounts due for the materials furnished and the labor rendered to the property.   On May 1, 2008, to secure payment, the plaintiff filed a Certificate of Mechanic's Lien against the property in the amount of $19,924.17 (the mechanic's lien), and the certificate was recorded in Volume 171 at Page 411 of the Preston Land Records.   Count one of the plaintiff's complaint is directed toward the defendant, seeking to foreclose a mechanic's lien against the property.   Counts two and three of the plaintiff's complaint are directed toward Kusek, alleging claims for breach of contract and unjust enrichment, respectively.

On October 15, 2009, the defendant filed a motion to discharge the plaintiff's mechanic's lien on the ground that the defendant's mortgage is prior in right to the plaintiff's mechanic lien.   In support of its motion, the defendant filed a memorandum of law and certified copies of the plaintiff's mortgage deed, the plaintiff's responses to the defendant's first set interrogatories, dated March 19, 2009, and the plaintiff's responses to the defendant's second set of interrogatories, dated July 9, 2009.   The plaintiff filed its objection to the defendant's motion on October 30, 2009.

DISCUSSION

“[I]n Connecticut, the mechanic's lien is a creature of statute and gives a right of action which did not exist at common law ․ The purpose of the mechanic's lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon ․ Moreover, the guidelines for interpreting mechanic's lien legislation are ․ well established.   Although the mechanic's lien statute creates a statutory right in derogation of the common law ․ its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials ․ Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.”   (Internal quotation marks omitted.)  Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn.App. 125, 129, 891 A.2d 133 (2006).

In an action to dissolve a mechanic's lien, the plaintiff must first establish that there is probable cause to sustain the validity of the lien established.   General Statutes § 49-35b(a).  “It is important to remember that the [lienor] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ․” (Internal quotation marks omitted, citations omitted.)  36 Deforest Ave., LLC v. Creadore, 99 Conn.App. 690, 695, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007).   Upon doing so, the burden of proof then shifts to the defendant to establish by clear and convincing evidence that the lien should be dissolved or reduced.  General Statutes § 49-35b(a).

The requisite elements for a mechanic's lien are set forth in General Statutes § 49-33(a), which provides in relevant part:  “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 ․ and the claim is by virtue of an agreement with or by consent of the owner of the land ․ then the plot of land, is subject to the payment of the claim.”

In the present case, Kusek, the owner of the property, hired the plaintiff to furnish materials and render labor in the construction of improvements to the property.   The plaintiff subsequently furnished materials and rendered labor in excess of ten dollars for that purpose.   As a result, the court finds through credible evidence that the plaintiff has established probable cause to sustain the validity of the mechanic's lien pursuant to General Statutes § 49-35b(a).   Therefore, the burden of proof now shifts to the defendant to establish by clear and convincing evidence that the mechanic's lien should be discharged.

The defendant argues that the plaintiff's mechanic's lien should be discharged because the plaintiff failed to furnish priority materials or services to the property before the defendant's mortgage was recorded.   The plaintiff counters that the statute does not provide a distinction between lienable services and priority services.   The plaintiff further counters that the plaintiff's delivery of equipment to the property prior to the recordation of the defendant's mortgage constituted readily visible evidence that lienable work had commenced.

General Statutes § 49-33(d) provides in relevant part:  “If any instrument constituting a valid encumbrance ․ other than a mechanic's lien is filed for record ․ all such mechanic's liens originating prior to the filing of that instrument for record take precedence over that encumbrance ․ That encumbrance ․ shall take precedence over any mechanic's lien which originates for materials furnished or services rendered after the filing of that instrument for record ․”

[T]he foundational concept underpinning the mechanic's lien statute is one of notice ․ An encumbrancer is chargeable with notice of materials furnished or services rendered that have some form of visible impact on the property.   Something more than merely preparatory off-premises work is required ․ Most jurisdictions have held that, to have priority, the work must be of such a nature as to be reasonably apparent upon inspection ․ The mechanic's lien statute contemplates reasonable notice, not extraordinary investigation.”   (Citations omitted, internal quotation marks omitted.)  Calabrese Development Corp. v. Carpinella, Superior Court, judicial district of Waterbury, Docket No. CV 91 0090341 (June 16, 1992, Blue, J.) (7 Conn. L. Rptr. 657, 660).

The defendant cites the court's decision in Calabrese Development Corp. v. Carpinella, supra, 7 Conn. L. Rptr. 657, in support of its argument.   In Calabrese, the lienor prepared HVAC plans and ordered rooftop units for the property, but performed no work at the site before the bank filed its mortgage.  Id. The court found that the mechanic lien was subordinate to the mortgage, noting that “[t]he materials furnished and the services rendered by [the lienor] at the time the [b]ank filed its mortgage were ․ not on the premises ․ [and] someone visiting the premises on the day the [b]ank's mortgage was filed could not have detected [the lienor's] work to that date with the aid of the most powerful telescope.”  (Citation omitted.)  Id., 660.

In the present case, the materials furnished and the services rendered by the plaintiff before the defendant filed its mortgage involved the plaintiff holding multiple telephone conferences, reviewing cost figures and delivering a generator, skidster, gasoline and diesel fuel to the property.   It is clear that the telephone conferences and cost reviews constitute preparatory off-premises work.   Unlike the lienor in Calabrese, however, the plaintiff also delivered equipment and fuel to the premises, which had a visible impact on the property that could be reasonably apparent upon inspection.   As a result, the defendant has failed to demonstrate by clear and convincing evidence that the plaintiff's mechanic lien should be discharged.

CONCLUSION

Based on the foregoing, the court hereby denies the defendant's motion to discharge the plaintiff's mechanic's lien.

Martin, J.

FOOTNOTES

FN1. Kusek is not a party to the present motion.   Hereinafter, the term the defendant refers to SunTrust..  FN1. Kusek is not a party to the present motion.   Hereinafter, the term the defendant refers to SunTrust.

Martin, Robert A., J.