LLC v. Allen Isabelle et al. (2010)

MEMORANDUM OF DECISION

The plaintiff, Vale Properties, LLC (Vale), commenced this action to foreclose a mechanics lien filed on property owned by the defendant, Allen P. Isabelle (Isabelle), by summons and complaint dated May 20, 2008.   Isabelle appeared and trial commenced on June 11, 2009, and was adjourned to June 15, 2009, at which time the court, Matasavage, J., declared a mistrial.   On June 24, 2009, the plaintiff filed a request for leave to amend his complaint to cite in additional parties defendant, Mortgage Electronic Registration Systems, Inc. and JP Morgan Chase Bank, N.A. The plaintiff's amended complaint also added two additional counts, a second count sounding in breach of contract and a third count sounding in unjust enrichment.   Isabelle filed an answer and a special defense as to all three counts, asserting that Vale's claim is barred in whole or in part because Vale had failed to register as a home improvement contractor as required by the provisions of General Statutes § 20-429.   Vale has denied the allegations of Isabelle's special defense.   This matter went to trial on September 9, 2010.

FACTS

The court makes the following findings of fact.   Vale is a limited liability company whose sole member is Garrett Meade.   Meade and Isabelle met some time in 2003.   Both men were in the building trades.   Meade was engaged in excavation and septic system installation and Isabelle was in the tree clearing business.   At the time, Meade was, and continues to be, a licensed septic installer under the statutes of the state of Connecticut.   Meade has never held a license under the provisions of Connecticut's Home Improvement Act, General Statutes § 20-418 et seq.   The two struck up a friendship and began a professional relationship, referring work to each other and each providing work for the other directly or as subcontractor on various jobs.   Much of the work between them was conducted on the basis of barter including a very loose system of crediting referral fees for work, also on a barter basis.   At that time, Meade conducted all of his excavation and septic work through his company, Vale. There was no testimony as to whether Isabelle did business as a sole proprietor or through some other business entity.   In time, the men became close friends, dining over each other's homes and vacationing together.

During December 2006, the two men met at a building lot which Isabelle had just purchased and on which he intended to build a home for himself.   The lot, known as 6 Autumns Way, Brookfield, was in a subdivision owned by Keith Aragi (Aragi).   Meade had been retained by Aragi to do road work in the subdivision.   Isabelle had contracted with Aragi to construct the house and oversee the project and sought the meeting with Meade to discuss having him do the site and excavation work as well as to install the septic system.   There was no third party present at this meeting and there is no way for the court to discern what actually transpired between the two men.   Suffice it to say that each came away from the meeting with a different understanding of what each had purportedly agreed to.   One point of agreement is that the site contained a generous amount of sand which, at least Meade, if not both Meade and Isabelle, believed to be septic grade sand.   The sand was to play a pivotal role in their dealings.   For his part Isabelle believed that he was owed some barter credit from past business dealings with Meade.   He also believed that there was enough sand on site that Meade could remove and resell, or possibly barter to a third party, as much as was needed to completely satisfy the cost or value of the excavation and septic services provided by Meade.   In any event he believed that the cost of the site and septic work would be capped at the value of whatever past credits he was due from Meade together with the value of whatever sand was removed from the site by Meade.   Meade's understanding was different and his calculus more exacting.   Meade believed that he was to provide equipment, labor and machinery at the rate of $125 per hour plus material and that he would credit against such costs whatever he received for reselling the sand.   He testified that his belief was based on past business dealings with Isabelle and his insistence that Isabelle knew from their past dealings that he charged on an hourly rate.   Meade's understanding involved no cap on his charges.

On or about December 9, 2006, Meade, using equipment and machinery owned by his company, Vale, commenced site work.   Over the course of three consecutive days from December 13, 2006 through December 15, 2006, and a fourth day, December 27, 2006, Meade excavated and removed many dump truck loads of sand.   Meade excavated the sand and Bill Joyce (Joyce) carted the sand away in trucks which he owned.   Joyce was in fact the purchaser of the sand, for which he paid Meade at the rate of $14 per yard.   Although not especially relevant to the case at hand, Meade disclosed that the sand was later discovered to be non-septic grade sand worth only $2 to $3 per yard, but that Joyce had already paid him and Joyce eventually “took the hit” for his failure to properly test the sand before buying it.   Each of the trucks which normally carried eighteen yards was overloaded and was carrying at least twenty yards, possibly as much as twenty-five yards.   Meade testified that he removed forty-five loads of sand on December 13, 2006, forty loads of sand on December 14, 2006, four loads of sandy fill (valued at a lower rate than septic grade sand) and twenty loads of sand on December 27, 2006.   Meade testified that he received $29,400 from Joyce for the septic grade sand and $640 for the sandy fill.   Meade's calculation on the septic grade sand is based on twenty yards per truck load and 105 truck loads.   The testimony of Isabelle stands in sharp contrast.   Isabelle testified that he was present each of the days for the entire day when sand was being removed and that he personally counted eighty-five truck loads of septic sand on the first day, December 13, 2006 and sixty-five loads on the following day.   He also testified that he believed that the truck loads were larger than twenty yards, possibly up to twenty-five yards, each but could provide no basis satisfactory to the court for such belief.   By Isabelle's numbers and using a figure of twenty yards per truck load, the credit for septic sand would be $47,600.   When asked under examination whether he and Isabelle tallied up truck loads at the end of each day, Meade said that there was no need to-”we were all friends.”   Neither party called Joyce as a witness to testify as to how many truck loads of septic sand he removed, the volume of sand per truck load or the amount he paid Meade for the sand.   Meade testified that he had no invoices, tickets or bills of lading from Joyce.

The excavation and septic work was completed during March 2007 and Isabelle requested that Meade stay on the project.   The parties had no further discussion about terms for the additional work, although Meade claims he provided Isabelle with spreadsheets similar to the spreadsheet introduced at trial as plaintiff's exhibit four on a semi-regular basis.   Isabelle denies ever receiving a bill, spreadsheet or other accounting from Meade until January 2008.   Meade, starting in April 2007, provided additional work as follows:  site work for masonry walls near the septic system, site work for the front entrance and driveway base, exterior landscaping, lawn installation, driveway installation, curbing and final backfilling.   Much of the landscaping was done in May and June 2007 and the final items including the driveway, curbing and backfilling the curbing were finally completed on Saturday, September 22, 2007.   Isabelle testified that he received a certificate of occupancy for the house sometime in late May of early June 2007.

Meade has provided an accounting in which he details labor, time and materials broken down by date.  (Plaintiff's Exhibit 4.) The accounting runs from December 9, 2006 through June 21, 2007.   There are additional items on the accounting that do not show dates on which the work was done.   However through testimony provided by Meade, as the court has noted above, the work stretched out through September 22, 2007.   Meade's claim, per his accounting, is for $34,070.   His total for services and material is $69,070 and he credits Isabelle with $30,000 for sand removed and resold as well as a $5000 credit to Isabelle for “stump jobs.”   This is presumably in reference to barter credits for commissions on job referrals.  (Plaintiff's Exhibit 4.)

Isabelle for his part does not dispute that any of this work was done or that it was done in a workmanlike manner to his satisfaction.   Although he disputes the accounting provided by Meade, his objection is rather general.   Isabelle testified that he disputes the man-hour totals for labor and machinery because he was never provided with regular weekly or monthly statements as the job progressed.   He could point to no specific entry as inaccurate or incorrect.   Under examination he, in fact, corroborated much of the testimony of Meade of what work was done and when it was done, particularly with regard to the landscaping.   What he did vehemently disagree with was whether most of the trees, shrubs and plantings were paid for.   On his accounting Meade lists and charges Isabelle for a variety of plantings including one caliper pear tree, one caliper dogwood, three cherry trees, three lilac bushes, fifteen boxwoods, fifteen carpet rose, seven barberries, twelve red twig dogwoods and nine spirea, all delivered between June 18, 2007 through June 21, 2007, totaling $6455.  (Plaintiff's Exhibit 4.) Isabelle insisted that he was there the entire time putting in the landscaping along with Meade and he paid cash upon the delivery of all of the plants in question.   He testified that in fact the caliper pear tree didn't even come from a nursery, that he and Meade dug it up from the yard at Meade's house, damaged it in the process but transplanted it anyway, hoping it would survive.   Isabelle also disputes a $5000 charge on Meade's accounting dated January 3, 2007.   Meade testified that he loaned Aragi the sum of $5000 at Isabelle's request and that he was never repaid.   Isabelle denies that he ever requested Meade to loan Aragi the money or that he agreed to guarantee Aragi's repayment.

It is not clear what led to the breakdown of the business relationship and the friendship between these two men nor is it especially relevant to the resolution of this case.   Meade indicates that the relationship had soured sometime in October 2007.   Isabelle dates the events leading to the breakup in November 2007.   On December 18, 2007, Vale caused a certificate of mechanics lien to be recorded in the office of the town clerk of Brookfield against the property known as 6 Autumns Way, Brookfieid, Connecticut.   The recitations of the lien in relevant part are as follows:  “VALE PROPERTIES, LLC having a place of business at 53 Vale Road, Brookfield, Connecticut, in accordance with a certain contract between it the said VALE PROPERTIES, LLC, and GARRETT MEADE as the general contractor who entered into a contract with the owner, Isabelle Allen, claims a lien under Chapter 847 of the Connecticut General Statutes on the following described premises in the Town of Brookfield ․” (Plaintiff's Exhibit 1.) Isabelle claims to have never received a bill from Meade or been made aware that Meade claimed any money was owed him until January 2008.   Isabelle testified that he was snowmobiling in Canada when he received a phone call from his wife “that there was a sheriff there to put a lien on the house.”   There was no testimony as to the date of this call and no other evidence, either in the form of a marshal's return or otherwise, as to manner or date of service of the mechanics lien.

Isabelle also testified that a detailed bill from Vale dated October 1, 2007 was never delivered to him until January 2008.  (Defendant's Exhibit G.) Comparing this bill line by line to the spreadsheet prepared by Meade and used at trial, although dates of service and work or material provided correspond exactly between the two documents, of over seventy lines there are hardly any entries that agree and in most cases the discrepancies are significant.   As examples, in the October 1, 2007 bill Vale charges $2500 for stumping and stripping soil on December 10, 2006.   In the spreadsheet presented to the court he charges $1250.   Thirteen Norway spruce trees delivered on April 11, 2007 are billed in the October 1, 2007 bill at $975 and in the spreadsheet at $1950.   These are not atypical examples.

DISCUSSION

I

Vale's first count claims a foreclosure of the mechanic's lien.   The mechanic's lien statute “creates a statutory [right] in derogation of common law.”  Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 550, 429 A.2d 796 (1980).  “Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim ․ Provisions of mechanic's lien law should be liberally construed so as to reasonably and fairly implement its remedial intent.”  (Citations omitted.)  H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981).  “[Its] interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.”  Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn.App. 773, 777, 724 A.2d 541 (1999).

General Statutes § 49-34 provides, in relevant part:  “[A] mechanic's lien is not valid unless the person performing the services or furnishing the materials ․ not later than thirty days after filing the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as provided for the service of the notice in section 49-35.”

General Statutes § 49-35 provides in relevant part:  “No person other than the original contractor ․ or a subcontractor whose contract with the original contractor is in writing and has been assented to in writing by the other party to the original contract, is entitled to claim any such mechanic's lien, unless, after commencing, and not later than ninety days after ceasing, to furnish materials or render services for such construction, raising, removal or repairing, such person gives written notice to the owner of the building, lot or plot of land ․ that he or she has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefore on the building, lot or plot of land ․ The notice shall be served upon the owner ․ by any indifferent person, state marshal or other proper officer, by leaving with such owner ․ at such owner's usual place of abode a true and attested copy thereof.”

The text of the mechanic's lien indicates that Vale was a subcontractor delivering goods and services through Meade as the general contractor.   (Plaintiff's Exhibit 1.) As such, under the provisions of § 49-35, Vale was required to have a written contract with the general contractor which was assented to in writing by Isabelle or, in the alternative, to serve upon Isabelle a notice of intent to lien.   The requirements that the lien must be recorded and served and the requirement that a subcontractor must serve a notice of intent to lien may be satisfied by the same document provided the document satisfies all of the statutory requirements.  H & S Torrington Associates v. Lutz Engineering Co., supra, 185 Conn. 554-55.

Vale has failed to prove service of the mechanic's lien and notice as required by § 49-34.   Vale has proven that the lien was recorded in the office of the town clerk of Brookfield on December 18, 2007.   Vale had thirty days to serve a true and attested copy on the property owner.   Although Vale's complaint recites that the copy was served on December 21, 2007, Vale offered no proof at the time of trial.   Vale asserts that Isabelle's admission that his wife called him while he was snowmobiling in Canada sometime in January to tell him “that there was a sheriff there to put a lien on the house” is not adequate proof of compliance with the statute.   This testimony contradicts the statement in the complaint as to date of service, leaves open the question of whether service was accomplished within the statutory time frame and fails to describe the method of service.   For these reasons Vale's first count must fail.

II

Vale's second and third counts claim relief, respectively, under theories of breach of contract and unjust enrichment.   To create a contract, there must be an unequivocal acceptance of an offer.   The acceptance of an offer need not be express, but may be shown by any words or acts which indicate the offeree's assent to the proposed bargain.  Maltby, Inc. v. Associated Realty Co., 114 Conn. 283, 288, 158 A. 548 (1932).   The acceptance of the offer must be explicit, full and unconditional.  Woodbridge Ice Co. v. Semon Ice Cream Corp., 81 Conn. 479, 487, 71 A. 577 (1908).   The burden rests on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract.  Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711 (1923).   The contract must also be supported by bargained for consideration.  Fisher v. Jackson, 142 Conn. 734, 737, 118 A.2d 316 (1955).   This court can find no evidence to support findings that there has been an offer and an acceptance of that offer, either express or implied, between Vale and Isabelle, or for that matter between Meade and Isabelle, if Meade had been properly made a party to this action.

“The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense the plaintiff ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Citations omitted;  internal quotation marks omitted.)  Polverari v. Peatt, 29 Conn.App. 191, 200-01, cert. denied, 224 Conn. 913, 614 A.2d 484 (1992).   The court finds that the elements to support recovery under a theory of unjust enrichment as between Vale and Isabelle have been proven.

III

Isabelle asserts as a special defense that Vale was not a duly licensed home improvement contractor and has not complied with the provisions of Connecticut's Home Improvement Act, General Statutes § 20-418 et seq.   “ ‘Home improvement’ ․ does not include ․ [t]he construction of a new home ․” General Statutes § 20-419(4).   It is Isabelle's assertion that all goods and services rendered by the plaintiff after the issuance of a certificate of occupancy no longer fall within the exception provided by the statute.   Isabelle testified that he obtained a certificate of occupancy sometime in late May or early June 2007.   Landscaping appears to have been completed sometime between mid-April through late-June.   The final remaining work, paving and curbing of the driveway as well as backfilling, was completed in September 2007 although the preparation work for the driveway, including laying the base was performed on May 16, 2007.   The court finds that those particular tasks relating to landscaping and site work performed by Vale, which in all probability were performed after the issuance of a certificate of occupancy, were not separate and distinct from the underlying project of constructing a new home with all of its appurtenant landscaping and site work.   The materials and services provided by the plaintiff up through its final day on the job in September 2007 served the parties' common goal of completing a new home for the defendant.   See Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn.App. 222, 228-29, 947 A.2d 989 (2008).   The court finds no merit to Isabelle's special defenses.

IV

The measure of damages will be the value of the goods or services rendered by the plaintiff to or for the benefit of the defendant.   This will require the court to make determinations as to the relative credibility of Meade and Isabelle.   The court has listened to the testimony of each and considered the documentary evidence.   The court is also entitled to observe the demeanor of a witness, to draw inferences therefrom, and to consider such evidence in assessing the credit to be given to the witness's testimony.  Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937).   Meade's credibility has been severely impaired by comparing the bill dated October 1, 2007 which he delivered to Isabelle in January 2008 (Defendant's Exhibit G) and the accounting which he prepared and presented to the court (Plaintiff's Exhibit 4) as a fair and accurate measure of the value of his services.   Time and machinery costs appear to have been grossly inflated on the initial demand (Defendant's Exhibit G) while the cost of tree and shrubs appear likewise inflated on the accounting prepared for trial (Plaintiff's Exhibit 4).   However, while Isabelle generally disputes the man-hour totals for labor and machinery because he was not provided with regular statements of accounting as the project progressed, he is not able to offer the court his own accounting.   The court therefore accepts the accounting set forth by Meade as the best record of the dealings between the parties under the circumstances and the best evidence of the value of the materials and services rendered.   The court finds, however, that the testimony of Isabelle regarding payment for trees, shrubs and plantings delivered in June 2007 to be more credible than the testimony of Meade and will disallow the sum of $6455 for such plantings.   The court will also disallow the $5000 which Meade attempted to charge Isabelle for money which Meade loaned to Aragi and for which he attempted to hold Isabelle liable as guarantor.   The court therefore finds the reasonable value of goods and services received provided by Vale and benefiting Isabelle to be $57,615.   This amount will be offset by the value of the sand which Vale removed from Isabelle's property as well as a $5000 credit which Meade himself acknowledged as a legitimate setoff owed to Isabelle for commissions or referral fees.   Once again the court finds the testimony of Isabelle to be more credible than that of Meade and finds the value of the septic sand to have been $47,600.   The value of the fill sand removed is undisputed at $640.   Taking into account these credits the court finds the net amount due to Vale to be $4375.

CONCLUSION

For the foregoing reasons, the court dismisses the first count of Vale's revised complaint (foreclosure of mechanics lien), finds in favor of Vale on the third count (unjust enrichment) and enters judgment in the amount of $4,375.

Michael G. Maronich, Judge

Maronich, Michael G., J.