Nejame & Sons, Inc. v. Kevin Gouveia et al. (2010)

MEMORANDUM OF DECISION

The plaintiff, Nejame & Sons, Inc., commenced this action in a single count to foreclose a mechanic's lien filed against property owned by the defendants, Kevin J. Gouveia and Megan E. Gouveia, by summons and complaint dated June 26, 2008.   The Gouveias appeared and together with their answer filed special defenses asserting that the mechanics lien is defective in that it fails to identify the party which provided the services, the action is barred because of the plaintiff's failure to comply with the provisions of the Home Improvement Act, General Statutes § 20-418 et seq., and there are no outstanding amounts due to the plaintiff.   The defendant, Danbury Hospital, holder of a lien subsequent in right to the interest of the plaintiff, has appealed in the action but asserts no defenses to the plaintiff's claims.   This matter went to trial on December 9, 2010.

FACTS

The court makes the following findings of fact.   At all relevant times herein Nejame & Sons, Inc. (Nejame) was and is a corporation organized and existing under the laws of the State of Connecticut.   Nejame's shareholders are various members of the Nejame family.   Nejame is in the business of installing new swimming pools and providing maintenance and repairs of existing swimming pools.   At all relevant times herein Nejame has held the following licenses issued by the State of Connecticut:  1) Swimming Pool Contractor Certificate of Registration from the Department of Environmental Protection;  2) Home Improvement Contractor License from the Department of Consumer Protection pursuant to General Statutes § 20-418 et seq.;   and 3) Demolition Contractors certificate from the Connecticut Department of Public Safety.   In addition Edward Nejame, Jr., a shareholder and officer of Nejame, holds a Plumbing & Piping Limited Contractor License issued by the Department of Consumer Protection pursuant to General Statutes § 20-330 et seq.

The defendants, Kevin J. Gouveia and Megan E. Gouveia (Gouveia), at all relevant times herein were and are the owners of the premises known as 27 Cambridge Circle, New Milford, Connecticut.   During September 2006, Megan Gouveia contacted Nejame to have their swimming pool located at her home winterized and to obtain a quote for the replacement of the swimming pool liner.   On September 16, 2006, Edward Nejame, Jr. met Megan Gouveia at her residence and provided her with a quote for the liner replacement on a standard form contract which Nejame used at that time.   The blank spaces were filled in by hand and the proposal was signed by Edward Nejame.  (Exhibit B.) Shortly thereafter Edward Nejame met Kevin Gouveia to discuss the proposed work and on October 17, 2006, Nejame presented Kevin Gouveia with a typed proposal for the liner replacement and related work.   The typed proposal was addressed to “Ken & Megan Gouveia,” an admitted clerical error in Kevin Gouveia's name.   Nonetheless Kevin Gouveia signed the contract on October 23, 2006, authorizing the work and gave Nejame a $700 deposit toward the work which was to be commenced and completed in the following summer pool season of 2007.  (Exhibit 7.) Contemporaneously with these events Edward Nejame presented Kevin Gouveia with a typed proposal for the installation of a winter cover containing the same clerical error as the liner replacement contract.   Kevin Gouveia likewise signed the acceptance of this proposal on October 23, 2006.  (Exhibit D.) Megan Gouveia was aware that her husband had signed the contracts authorizing the work and she, in fact, chose the liner pattern and color.

Pursuant to the agreement of the parties the pool was winterized on October 23, 2006 and all of the work involving the installation of the liner and cover was commenced and completed between June 26, 2007, and August 15, 2007.   Gouveia does not dispute that the work was completed as promised and in a workmanlike manner.   The total cost of the services and material provided was $7,943.98 of which the remaining balance is $2,606.13.   Gouveia does not dispute the balance owed and, in fact, stipulated to the balance at the trial.   Gouveia asserts that the debt is not collectible because the written contracts fail to comply with the provisions of the Connecticut Home Improvement Act, General Statutes § 20-418 et seq., in multiple respects, including the clerical error in Kevin Gouveia's name, the lack of Megan Gouveia's signature, the failure to include the contractor's license number, the failure to properly identify the contractor and a non-compliant rescission notice.   Nejame claims exemption under the provisions of the Act.

On October 30, 2007, Nejame caused to be recorded in the land records of the Town of New Milford a certificate of mechanics lien against the premises owned by Gouveia and known as 27 Cambridge Circle, New Milford which recited that “Nejame & Sons, Inc. and/or Nejame & Sons of Danbury, LLC ․ in accordance with certain contracts with Kevin J. Gouveia and Megan E. Gouveia has furnished materials and performed services upon premises owned by Kevin J. Gouveia and Megan E. Gouveia ․ that the value of the materials and services so furnished amounts to the sum of Four Thousand Four Hundred Ninety Three Dollars & 95/100 (4,493.95) ․ Nejame commenced to furnish materials and render services on October 23, 2006, and ceased furnishing materials and rendering services on August 15, 2007.”  (Exhibit 19.)   At the trial Edward Nejame, Jr. testified that at the time the services were rendered to Gouveia and for some time thereafter the shareholders of Nejame & Sons, Inc. were in the process of rolling over the assets of the corporation to Nejame & Sons of Danbury, LLC, a limited liability company whose members are the shareholders of the corporation.   The process has taken some time because of the extent of the assets involved as well as necessity of transferring licenses and complying with governmental regulations.   He confirmed that original contract was made with, and the work performed by, the corporation.

Contemporaneously with the filing of the instant action Nejame caused to be recorded in the land records of the Town of New Milford on June 30, 2008, a certificate of lis pendens against the premises owned by Gouveia and known as 27 Cambridge Circle, New Milford.  (Exhibit 18.)   There appears on file (# 104.00) an affidavit and oath of appraiser by Terrence P. Duffy, a licensed real estate appraiser, together with his appraisal of the subject property.   The appraisal indicates the value of the subject property as of July 16, 2010, to be $300,000, divided $125,000 as to land and $175,000 as to buildings.   The appraiser's fee is $350.   Gouveia did not dispute the appraised value of the premises at the trial.   Nejame's complaint dated June 26, 2008, recites the following encumbrances as prior in right to its mechanics lien:  1) municipal tax lien in favor of the Town of New Milford in the original amount of $3,559.17 recorded May 6, 2008;  2) mortgage in favor of Washington Mutual Bank, FA in the original principal amount of $294,800 recorded September 21, 2005;  and 3) mortgage in favor of Washington Mutual Bank, FA in the original principal amount of $36,850 recorded September 21, 2005.   Nejame's complaint dated June 26, 2008, recites the following encumbrance as subsequent and junior in right to its mechanics lien, a lien in favor of the defendant, Danbury Hospital, in the amount of $519.30 recorded March 14, 2008.

DISCUSSION

I

General Statutes § 49-34 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 ․ 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.”   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).   The court finds that the services and material were provided by Nejame to Gouveia for repairs to a swimming pool located on land owned by Gouveia pursuant to an express and valid agreement between Nejame and Gouveia.

II

Gouveia challenges the validity of the mechanics lien as “defective as it fails to identify what party provided services and/or materials to the defendant.”   Presumably Gouveia asserts that the lien is invalid because it lists Nejame & Sons of Danbury, LLC as well as Nejame & Sons of Danbury, Inc. as lienors.   Gouveia provides no authority for their claim.   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 ․ within ninety days after he has ceased to do so, lodges with the town clerk ․ a certificate in writing ․ describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials ․ stating that the amount claimed is justly due.”   The court finds the subject lien to be in compliance with the statute.

III

Gouveia asserts as a special defense that the action is barred because of the plaintiff's failure to comply with the provisions of the Connecticut Home Improvement Contractors Act, General Statutes § 20-418 et seq.   Violation of the provisions of Act provides a valid defense to the foreclosure of a mechanics lien.   See Kronberg Bros., Inc. v. Steele, 72 Conn.App. 53, 804 A.2d 239 (2002).   Nejame asserts that it is exempt under the provisions of General Statutes § 20-428(4) because Edward Nejame, Jr. holds a Plumbing & Piping Limited Contractor License issued by the Department of Consumer Protection pursuant to General Statutes § 20-330 et seq.   Gouveia contends that because Edward Nejame, Jr. holds the license personally, Nejame & Sons, Inc., the corporation cannot claim the exemption.   General Statutes “ § 20-428 exempts various persons and organizations from the requirements of the Home Improvement Act. It provides in relevant part:  ‘This chapter shall not apply to any of the following persons or organizations:  ․ (4) any person holding a current professional or occupational license issued pursuant to the general statutes, provided such person engages only in that work for which he is licensed.’  “ General Statutes § 20-428.  “Because § 20-428(4) exempts from the written contract requirement of § 20-429(a)(1) ‘persons' with current occupational licenses and ‘persons' is defined [in § 20-419(7) ] as including corporations, we conclude that if work is done by a licensed plumber who works for a corporation, the lack of a written contract between the corporation and a home owner does not bar recovery by the corporation for the work performed If [the corporation's] employees are licensed plumbers, [the corporation] is considered licensed also for purposes of § 20-428(4).”  Avon Plumbing & Heating Co., Inc. v. Fey, 40 Conn.App. 351, 358, 670 A.2d 1318 (1996).   Nejame would certainly not be entitled to claim the benefit of the exemption for a new swimming pool installation.   See Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087 (1995).   Repairs and maintenance on the other hand fall squarely within the provisions of the exemption provided by General Statutes § 20-428(4).  “According to our courts, a special defense that a contract does not comply with the Home Improvement Act is without merit if the exemptions contained in § 20-428 apply.”  Biller Associates v. Peterken, 58 Conn.App. 8, 16, 751 A.2d 836 (2000), rev'd in part on other grounds, 269 Conn. 716, 849 A.2d 847 (2004).   The court finds Nejame to be exempt from the provisions of the Act for the material and services provided to Gouveia and for which the certificate of mechanics lien was filed.

FINDINGS AND ORDERS

For the foregoing reasons, the court enters judgment of strict foreclosure as follows.   The court finds the debt to be $2,606.13.   The court finds the value of the subject property to be $300,000, divided $125,000 as to land and $175,000 as to buildings.   The court awards an appraiser's fee of $350.   Law days are set to commence on Tuesday, February 15, 2011, for the owners of the equity and subsequent days for subsequent encumbrancers in inverse order of their priorities.

Michael G. Maronich, Judge

Maronich, Michael G., J.