Ewan Sheriff v. Omar Harris et al. (2014)

MEMORANDUM OF DECISION RE APPLICATION TO DISCHARGE MECHANIC'S LIEN

The plaintiff, Ewan Sheriff, filed an application to discharge a $200,000 mechanic's lien filed by the defendant O & S Home Improvement, LLC, through its owner, the defendant Omar Harris, on a property located at 4–6 Sterling Street in Hartford, Connecticut.   Sheriff is the record owner of the property.   For the reasons stated below, the court finds that the defendants failed to establish probable cause to sustain the validity of the lien.   More specifically, the defendants (1) failed to present credible evidence that the plaintiff entered a contract or agreement for the repairs or otherwise consented to pay for them, and (2) failed to present credible evidence as to the cost of materials or labor for the repairs, such that the court has no trustworthy information upon which to base the amount of any mechanic's lien.   Accordingly, the plaintiff's application is granted and the mechanic's lien is discharged.

I

Procedural History

The plaintiff filed this action on October 10, 2013.   On October 15, 2013, he also filed an action against Omar Harris, Brenton Chambers, and Samech Bellegarde (Docket No. HHD–CV–13–6045986–S), seeking a temporary and permanent injunction prohibiting the defendants from collecting rent, keeping security deposits, changing the locks, doing repairs or barring him from access to the same property.

The defendants jointly filed an answer and special defenses in the injunction action on December 5, 2013, and the defendant Brenton Chambers filed a two-count counterclaim in which he alleges that he is the equitable owner of the property at issue.   Asserting promissory estoppel and unjust enrichment claims, Chambers seeks a mandatory injunction transferring title to the property to him, an order decreeing the property to be held in constructive trust for his benefit, and an order declaring him to be the owner of the subject property, in addition to monetary damages.   On December 6, 2013, the plaintiff objected to the answer, special defenses, and counterclaim, and simultaneously moved to dismiss and to strike the counterclaim.

The two actions were consolidated for purposes of a hearing on the application to discharge the mechanic's lien and a hearing on the plaintiff's application for a temporary injunction.   The hearing began on December 11, 2013, continued on December 18, 2013, and concluded on December 20, 2013.   On the second day of the hearing, the court denied the plaintiff's motions to dismiss and to strike the counterclaim in the injunction action.   At the end of the hearing on December 20, 2013, all parties agreed that the evidence regarding the mechanic's lien was complete.   The court left open the possibility of hearing further evidence in the injunction action if the parties deemed it necessary.   This decision addresses only the application for discharge of the mechanic's lien.

II

Factual Background

The property at issue in this case is a multi-unit mixed use building located at 4–6 Sterling Street and 210–216 Homestead Avenue in Hartford.   It contains eleven residential rental units and a commercial space that is currently in use as a corner grocery store.

At some time prior to 2010, the property was owned by Sylvia Deer, who is Brenton Chambers' mother.   By 2010, title to the property was held by Brenton Chambers, Trustee, and his aunt, Carmen Brown, Trustee.   In 2010, foreclosure proceedings were commenced by American Tax Funding, LLC, which had purchased municipal tax liens on the property from the city of Hartford.   In February 2012, Connecticut Tax Liens I, LLC acquired title to the property through a foreclosure sale.

Brenton Chambers wanted to keep the property in his family, but he was unable to obtain financing to purchase it because of problems with his credit.   At some point before February 2012, he approached the plaintiff, Ewan Sheriff, with a request for help in purchasing the property.¹  Chambers proposed that he would come up with the money for the down payment on the property if Sheriff would use his better credit rating to get a loan for the balance of the purchase price.   The plan was that Sheriff would take out a short-term loan to allow Chambers time to accrue some money and improve his credit rating so that he could then obtain financing, pay off the mortgage, and take title to the property.   Although the evidence did not make clear the details of their arrangement, Sheriff did agree to help Chambers.   On February 2, 2012, Sheriff signed an agreement to purchase the property from Connecticut Tax Liens I, LLC for $160,000.  (Ex. 33.)

The closing took place on July 27, 2012.   With financial assistance from his friend Omar Harris, Chambers supplied the cash that was required for the purchase and for insurance and legal fees, but Sheriff alone applied for and obtained a loan of $128,000, secured by a mortgage on the property.   The promissory note executed by Sheriff required payments of interest only during the term of the mortgage and a balloon payment of the principal due on April 1, 2013.  (Ex. 6.) At the closing, Sheriff was represented by Chambers' lawyer, Trevor Paris;  Sheriff did not have independent legal advice.   Sheriff was unfamiliar with the property and had not examined it closely before the transaction.   He was familiar with the exterior of the property.

On July 27, 2012, the day of the closing, Sheriff signed a letter to the tenants in the property, advising them that he was the new owner of the property and that rent payments should be given to his representative, Omar Harris.²  (Ex. C.) On August 10, 2012, Sheriff signed a document that stated that “Brenton Chambers is the true owner of 4 Sterling Street” and that Chambers was in charge of managing the property, “i.e., collecting rents, repairs, paying taxes, water and general upkeep of the building.”  (Ex. D.) This document, a copy of which was introduced as Exhibit D, was jointly prepared by Chambers, Chambers' wife, and Harris.³  It stated that Sheriff had “no interest of obtaining any financial gain from 4 Sterling Street.”  (Ex. D.) The document did not obligate Sheriff personally to pay any expenses associated with the property.

Both Omar Harris and Brenton Chambers testified during the hearing.   Each testified generally that the building was in a dilapidated condition at the time of the closing and that Harris' company, O & S Home Improvement, performed substantial repairs on the building to increase its value so that Chambers could obtain financing.   They claim to have replaced portions of the roof, replaced sheetrock, toilets, and bathtubs in some or all of the apartment units, replaced hot water heaters and boilers, and to have gutted and renovated the commercial space.⁴  They did not seek any building permits for any such activities, although permits were required for some of the activities they claimed to have done.   Harris claimed that they asked Sheriff to get the permits because he worked for the city of Hartford;  Sheriff denied that they ever made such a request.   As to this point, the court finds Sheriff's testimony more credible.   All witnesses agreed that Sheriff was not involved with the management of the property.   No invoices for any repairs were ever presented to him.

However optimistic the plans in July 2012, problems soon surfaced.   One problem arose in January 2013, when the Metropolitan District Commission (MDC) sued Sheriff, as the record owner of the property, for an arrearage of more than $10,000 for the property's water bill.⁵  Chambers and Harris assured Sheriff that they had worked out a payment plan with the MDC, and at their request, in late January 2013, Sheriff signed a stipulation agreeing that the MDC's arrearage would be paid in certain monthly installments and that a receiver of rents would be activated if scheduled payments were not made.⁶

Another problem arose when Chambers was unable to come up with the money, as planned, to pay off the mortgage by its maturity date of April 1, 2013.   A loan modification was negotiated, extending the deadline for a few months.

Another problem arose in May 2013, when Connecticut Light & Power Company (CL & P) started to send bills for the electrical services at 4–6 Sterling Street and 210–216 Homestead Avenue to Sheriff at his own residence.  (Ex. 10.)   He testified that at one point his own residential electrical service was turned off because of the unpaid electric bills for the Sterling Street property.   At the time of the hearing in December 2013, Sheriff was still attempting to resolve issues with CL & P.

Yet another problem arose when a Hartford property tax bill of $9,087.15 came due during the summer of 2013.   That bill was not paid when due, and it remained unpaid at the time of the hearing in December 2013.   By December another tax payment had come due, bringing the total unpaid property taxes and interest to $18,992.14.  (Ex. 26.)

When the first mortgage loan modification expired, Sheriff negotiated a second modification and paid the bank fees for that modification.  (Ex. 31.)   At or about this time, he also began to make the monthly interest payments out of his own funds.

Chambers testified that in the summer of 2013, he obtained a loan commitment to allow him to refinance the property, but his credit rating declined and the lender revoked the commitment.   His colleague Harris then sought alternative financing and obtained a prequalification letter (not a mortgage commitment) to refinance the property.  (Ex. 12.)

In the summer of 2013, Harris and Chambers went to Sheriff's home and demanded that he quitclaim the Sterling Street property to them so that they could refinance the loan.   Sheriff was concerned that if he quitclaimed the property to them without first receiving payment, he would be left with liability for the mortgage note, the taxes, the MDC bill, and the other bills that had begun to accumulate, but without the asset needed to satisfy those liabilities.   He declined to sign the quitclaim deed and sought the advice of a lawyer.   Apparently acting on that advice, he subsequently went to the Sterling Street property with a police escort and a locksmith to change the locks.   He left a letter from his lawyer at each of the units, advising the tenants to pay the rent directly to him in the future.

Although the evidence as to what happened next was not entirely clear, it appears that an attorney representing Chambers and Harris promptly gave the tenants contrary instructions.   On some date prior to September 19, 2013, Sheriff obtained a realtor and listed the property for sale, but the sign placed on the property was taken down immediately.   On September 19, 2013, an attorney representing Harris and Chambers wrote to Sheriff's attorney, asserting that Sheriff held only “naked title” to the property while Chambers owned “equitable title” to the property.   He stated that if Sheriff did not sign over the deed in exchange for $5,000, he would advise his clients to stop paying the mortgage.   The attorney added:  “When that mortgage loan was obtained by your client it was also secured by a mortgage on his personal residence.   This means that if my clients stop making payments on the mortgage, your client, Ewan Sheriff, will lose his home.   In fact, if we cannot work this out, I will advise my clients to stop making payments on the mortgage loan.”   (Ex. 3.) It is undisputed that Chambers stopped making payments on the mortgage and other outstanding liabilities related to the property.⁷

Also on September 19, 2013, O & S Home Improvement filed the mechanic's lien at issue in this proceeding and served a copy on Sheriff.  (Ex. A.) The lien certificate alleges in relevant part that O & S Home Improvement has a lien “for services rendered and materials furnished in the construction, erection, raising and removal of said building and for repairs done thereon” in accordance with a “certain contract between it the said O & S Home Improvement and Ewan Sheriff ․” It identifies Ewan Sheriff as the owner of the premises and states that the “name or names against whom this lien is being filed is/are Ewan Sheriff.”   Sheriff thereafter brought this application to discharge the mechanic's lien.

III

Discussion

“A mechanic's lien is a creature of statute.”  (Citations omitted;  internal quotation marks omitted.)  Newtown Associates v. Northeast Structures, Inc., 15 Conn App. 633, 636, 546 A.2d 310 (1988).   It is created by General Statutes § 49 ․ 33.⁸  Although the mechanic's lien statute creates a 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.”  (Internal quotation marks omitted.)   Rollar Construction and Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn.App. 125, 129, 891 A.2d 133 (2006).   The court may not, however, “depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.”  (Internal quotation marks omitted.)  Id.

In an application to discharge a lien under General Statutes § 49–35b(a), the lienor has the burden of establishing probable cause to sustain the validity of the lien.⁹  “Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence.”  Newtown Associates v. Northeast Structures, Inc., supra, 15 Conn.App. 636, citing Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977).  “The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.”  (Citation omitted;  internal quotation marks omitted.)  Newtown Associates v. Northeast Structures, Inc., supra, 636–37.

A

Consent

To establish probable cause to support a mechanic's lien, a person must first show that he is entitled to claim a lien.  “Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories.   Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials.”  Seaman v. Climate Control Corp., 181 Conn. 592, 595, 436 A.2d 271 (1980).

The defendants contend that the lienor established probable cause to believe that the repairs were done with the consent of the owner.   They rely on two documents.   First is a handwritten agreement between Connecticut Tax Liens I, LLC, as the seller of the property, and Sheriff, as the buyer of the property.  (Ex. 34.)   The document is dated July 5, 2012, some three weeks before the closing at which Sheriff acquired title to the property.   Paragraph 4 of the document provides that “Marcus Lane [an agent of the seller] shall continue to manage the Property but shall contact Omar Harris at 860–870–9784 prior to any work being done.   Omar Harris shall have the first right to complete any such work timely and in a commercially reasonable manner.”   The second document, Exhibit D, is the one drafted jointly by Chambers, Chambers' wife, and Harris.   This document, signed by Sheriff on August 10, 2012, states that Sheriff agrees that “Brenton Chambers is the true owner of 4 Sterling Street” and states that Chambers “would be in charge of obtaining the finances to purchase the property and the managing of the building, i.e., collecting rents, repairs, paying taxes, water and general upkeep of the building.”  (Ex. D.)

Although these documents establish that Sheriff was aware that Harris might from time to time perform repairs on the building, and that Sheriff agreed that Chambers was in charge of “managing the property,” neither of these documents indicates an agreement by Sheriff to be liable to pay for any repairs.  “Under General Statutes § 49–33(a), the consent required from the owner or one acting under the owner's authority is more than the mere granting of permission for work to be conducted on one's property ․ or the mere knowledge that work was being performed on one's land ․ The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor.”  (Citations omitted;  internal quotation marks omitted.)  Newtown Associates v. Northeast Structures, Inc., supra, 15 Conn.App. 639–40.

Courts have found mechanic's liens invalid where the owner of the land was generally aware of work being done on the property but had not agreed to pay for it.   See, e.g., Newtown Associates v. Northeast Structures, Inc., supra, 15 Conn.App. 639–40 (affirming discharge of a mechanic's lien where the owner and the owner's lessee each contracted with the lienor for certain work on the property, but the owner never agreed to be liable for work done at the lessee's request);  Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 475 A.2d 1100 (1984) (affirming discharge of a mechanic's lien where the lessee contracted for improvements to the property with the owner's knowledge but the owner never agreed to be liable for the improvements);  Lyon v. Champion, 62 Conn. 75, 25 A. 392 (1892) (reversing foreclosure of mechanic's lien where the owner had consented generally to renovations of her property with the understanding, known to the lienor, that her daughter-in-law would pay for the work).

In this case, it is undisputed that Sheriff was never obligated to pay for the repairs.   Indeed, Chambers admitted that no bills were ever presented to Sheriff for the repairs because it was Chambers, not Sheriff, who was obligated to pay for them.  (Chambers Test., 12/20/2013, afternoon.)   The O & S Home Improvement invoices submitted near the end of the hearing were all addressed to Chambers.  (Ex. Z.) Based on all the evidence presented, including all the testimony and exhibits, the court finds that Sheriff never consented to be liable for the costs of any repairs or improvements.

This case is similar to Lyon v. Champion, supra, 62 Conn. 77–78.   In Lyon, the defendant property owner had agreed to allow certain improvements to be made to the family dwelling on the property at the expense of her daughter-in-law Mary, who would receive a deed for a life-interest in one of the tenements on the property after completion of the project.   The plaintiff did the work knowing that Mary was expected to pay for the improvements.   When Mary failed to pay, the plaintiff placed a lien on the owner's property.   The Supreme Court held that the defendant's knowledge and general consent that the work be done on her property was not the consent meant by the mechanic's lien statute because she had not “consented that he should do it for her or at her charge.”  (Emphasis added.)  Id., 78.   The same is true here.   Although the plaintiff generally agreed that Harris could make repairs, he never agreed to pay for those repairs, and Harris knew that Chambers was responsible for the costs of the repairs.

The defendants argue that Chambers, “as the ‘true owner’ of the property, had the authority to consent to the work being done.”  (Def. Post Trial Brief at 3.) But the lien was not filed against Chambers;  it was expressly filed only against Sheriff.  (Ex. A.) Notably, the defendants do not argue that Chambers was acting as Sheriff's agent.   To the contrary, they recognize that Chambers was acting on his own behalf.   Both Chambers and Harris testified repeatedly that Chambers was the “owner” of the property.   They did not testify that Chambers was Sheriff's agent or that Chambers had authority to bind Sheriff to pay for the repairs.   Indeed, their claim that Chambers is the “true” owner of the property is premised on their assertion that Sheriff had no financial responsibility for the property.

As to this point, the Supreme Court's decision in Hall v. Peacock Fixture & Electric Company, supra, is instructive.   In that case, the lienor did renovations on a commercial property at the request of the lessee of the property.   Although the property's owner was initially unaware of the renovations, the owner ultimately consented in writing to allow the lessee to continue the work that was in progress.  Hall v. Peacock Fixture & Electric Company, supra, 193 Conn. 292.   In holding that the lessee was not acting as the owner's agent, the Supreme Court reiterated that three elements are required to show the existence of an agency relationship:  “(1) a manifestation by the principal that the agent will act for him;  (2) acceptance by the agent of the undertaking;  and (3) an understanding between the parties that the principal will be in control of the undertaking.”  (Emphasis added;  internal quotation marks omitted.)  Id., 294.   In this case, the parties never agreed that Sheriff would be “in control” of the undertaking.   To the contrary, Exhibit D (drafted by Harris, Chambers, and Chambers' wife) states that “all decisions made concerning the building must be finalized with Mr. Brenton Chambers.”   Accordingly, the court finds that Chambers was not Sheriff's agent and was not authorized to bind Sheriff to pay for repairs to the property.

Even if Exhibit D were viewed as generally authorizing Chambers to approve repairs as Sheriff's agent—which the court expressly finds not to be the case—Exhibit D does not support a claim that Chambers was authorized to approve repairs that could not be paid from the rent proceeds.  “No mechanic's lien may exceed the price which the owner has agreed to pay for the building being erected or improved ․” (Internal quotation marks omitted.)   Construction Ken–Nection, Inc. v. Cipriano, 136 Conn.App. 546, 554, 45 A.3d 663 (2012).   Sheriff testified that the document reproduced in Exhibit D was presented to him by Harris and Chambers as something that was supposed to protect his interests.   The court credits that testimony.   The document contains representations clearly intended to reassure Sheriff that he was not going to incur unexpected liabilities as a result of signing it.   It states that the building is “appropriately insured” to protect Sheriff from liability lawsuits and that the mortgage will be paid monthly through an agreed-upon account to “protect ․ Sheriff's credit.”   Nothing in the document indicates that Sheriff gave Chambers unlimited authority to incur expenses for repairs for which Sheriff would be liable.   The most reasonable inference from the document is that the expenses associated with the property, including repairs, were to be paid from the rents collected.   Harris, as a co-drafter of the document, was well aware of its contents and its limitations.

Because Sheriff neither agreed to be liable for repairs to the property nor authorized Chambers to bind him to be liable for repairs, he did not consent to the work done as required by the mechanic's lien statutes.   The mechanic's lien is discharged on this basis.

B

Cost of Repairs

There is a second, independent ground for the discharge of the mechanic's lien.   Even if Sheriff had consented to the repairs, the defendant lienor failed to produce credible evidence of the extent of the repairs, the cost of materials, and the labor involved.   The court does not doubt that the defendants performed some repairs throughout the property and performed what was perhaps a substantial renovation of the commercial space.   But the court has no way of valuing those repairs because neither the testimony nor the documents presented to establish the costs were credible.   The testimony presented by Harris and Chambers was vague and sometimes evasive.   As to many questions, Harris answered that he would have to “check his records,” but he did not produce them during his testimony.   Of the $200,000 claimed to be owed, Harris estimated that $120,000 of that amount was for labor.   When asked how he arrived at that labor charge, he did not provide a coherent or credible response.   He testified that he and Chambers did most of the work themselves, occasionally assisted by two other workers.   He testified generally that he priced labor by the job, not by the hour, but he did not give a plausible explanation of the basis of his charges.   He did not testify as to what he paid any employees.   He did not produce any receipts for materials.

Chambers also testified about the scope of the repairs and the costs of repairs.   On the third day of the hearing, after Chambers and Harris each had been cross examined on earlier days about whether they had records documenting the repair costs, Chambers offered into evidence a set of invoices that he said he had received from O & S Home Improvement for the work done on the property.   He testified that he had not looked at most of them when he received them.   He also testified that he had not given any invoices to Sheriff because he, Chambers, was responsible for paying them.   He testified that none of the invoices had been paid.   Chambers was unable to answer questions about specific invoices, saying that Harris would have to answer those questions—but Harris never offered any testimony to explain the invoices, even though he bore the burden of proving probable cause to sustain the lien.

The court finds that the invoices are not credible documents, and the court gives no weight to them.   See Rollar Construction and Demolition, Inc. v. Granite Rock Associates, LLC, supra, 94 Conn.App. 131–33 (affirming trial court's finding that invoices offered in mechanic's lien case were not credible documents).

The entries in the invoices are both vague and inconsistent.   For instance, seven invoices contain entries that allege a quantity of “4” for an item identified only as “managing property,” with no further description.   The cost of this item is identified on five of the invoices as $450 per item, for a total of $1,800 per invoice, and on two of the invoices as $650 per item, for a total of $2,600 per invoice.¹⁰  Even where the items identified appear to be charges for materials, almost all of the prices are expressed in round numbers.   No sales taxes are shown on any of the invoices, either for materials or for labor, and each invoice bears a notation:  “Out of state sale, exempt from sales tax.”   Some charges are apparently for services other than repairs or improvements, such as charges for paying a pest company to spray for bed bugs.¹¹

Some information in the invoices conflicts with the earlier testimony.   For instance, Harris testified that he replaced toilets in all twelve units, but the invoices reflect charges for only four toilets.¹²  He testified that he charged $150 in labor to replace a toilet, but one of the two invoices listing toilets as an item shows no labor charge at all, and the other invoice listing toilets aggregates the labor charge for a variety of items, making it impossible to discern the charge for any particular item.   Harris testified that they patched the roof twice, once with materials that cost about $1,000 and once with materials that cost $3,000–$4,000.   Both invoices for roof patching, however, show a cost of materials of only $850.   One shows a labor cost of $1,300, while the other shows no labor cost for the roof patching.¹³

With regard to the largest single charge, the renovation of the commercial space, there is a single invoice, dated November 30, 2012, that consists of two items:  a quantity of “1” for an item of “Commercial Space” ¹⁴ at a block price of $56,000.35, and a quantity of “1” for an item of “Labor Cost” at a price of $42,985.00.   Both Chambers and Harris testified that the renovation of the commercial space was a major project that required several months' work.   Chambers testified that they began work on the commercial space in September 2012, and completed it in February 2013.   He further testified that they did not know how much it was going to cost when they started the project.   In light of all the testimony and the generality and purported timing of the invoice, the court concludes that this invoice is—at best—a guess.

The court is aware that the mechanic's lien statute, although in derogation of the common law, is given a generous construction, and that mere errors on the face of the lien certificate will not invalidate a lien where the mistake was made in good faith and no prejudice results.   See, e.g., First Constitution Bank v. Harbor Village Limited Partnership, 230 Conn. 807, 815–16, 646 A.2d 812 (1994);  Tramonte v. Wilens, 89 Conn. 520, 523–24, 94 A. 978 (1915).   The court is also aware that the burden on a lienor to show probable cause to sustain the validity of the lien is a modest one.  “Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence.”  Newtown Associates v. Northeast Structures, Inc., supra, 15 Conn.App. 636.   Nevertheless, the court cannot find that the defendant lienor has met its modest burden of showing probable cause as to the amount of the lien in this case.   The testimony as to the scope and costs of the repairs was vague, and much of it appeared to the court to be overstated or exaggerated.   The invoices are not credible.   No receipts or bills for materials were presented.   The court simply has no credible factual basis on which to determine what amount would be properly chargeable.

In addition, the court cannot find that the overstatement of the amount of the lien was inadvertent.  “[W]here the certificate is either intentionally false, or so grossly inaccurate as to show that there was no attempt to give an accurate and true description, then, if the statute means anything, the certificate ought to be held void.”  Tramonte v. Wilens, supra, 89 Conn. 525.   Nor can the court find that the lien was filed in good faith.   The lien certificate was filed on the same day that the defendants' attorney demanded that Sheriff sign over the deed to the property or face losing his own home—a demand that was made without giving Sheriff any assurance that all the debts associated with the property would be cleared.   The timing suggests that the lien was filed to make it more difficult for Sheriff to take any steps to sell the property.

IV

Conclusion

While the court does not find that Sheriff consented to the repairs and does not credit the defendants' evidence as to the scope or costs of the work done, the court does recognize that Harris and Chambers have invested substantial amounts of money and work in the purchase and the maintenance of the property.   It remains to be determined in the injunction action whether they have any defenses or claims that are cognizable in law or equity.   In this action, the court finds only that the defendants have failed to meet their burden of establishing probable cause to sustain the validity of the mechanic's lien.   Accordingly, the mechanic's lien is discharged.

BY THE COURT,

Sheila A. Huddleston, Judge

FOOTNOTES

FN1. Sheriff had recently bought a home in the neighborhood where Chambers lived, and there appears to have been some sort of friendly relationship between Chambers' family and Sheriff's mother, but it does not appear that Sheriff knew Chambers well at the time when Chambers approached him for assistance..  FN1. Sheriff had recently bought a home in the neighborhood where Chambers lived, and there appears to have been some sort of friendly relationship between Chambers' family and Sheriff's mother, but it does not appear that Sheriff knew Chambers well at the time when Chambers approached him for assistance.

FN2. It was disputed whether Sheriff also signed a letter authorizing “Omar Harris and Brenton Chambers of O & S Home Improvement LLC to manage 4–6 Sterling ST” and advising that Harris and Chambers would be the individuals to be contacted for any repairs.  (Ex. B.) The document bears Sheriff's signature, but only a photocopy was produced at the hearing, and Sheriff denied ever having seen it before.   After hearing all the testimony of both Harris and Sheriff, and after closely examining the document and comparing it with other exhibits, the court credits Sheriff's testimony and gives no weight to Exhibit B..  FN2. It was disputed whether Sheriff also signed a letter authorizing “Omar Harris and Brenton Chambers of O & S Home Improvement LLC to manage 4–6 Sterling ST” and advising that Harris and Chambers would be the individuals to be contacted for any repairs.  (Ex. B.) The document bears Sheriff's signature, but only a photocopy was produced at the hearing, and Sheriff denied ever having seen it before.   After hearing all the testimony of both Harris and Sheriff, and after closely examining the document and comparing it with other exhibits, the court credits Sheriff's testimony and gives no weight to Exhibit B.

FN3. Harris testified that he drafted the document introduced as Exhibit D with Chambers' wife;  Chambers testified that he also participated in drafting the document..  FN3. Harris testified that he drafted the document introduced as Exhibit D with Chambers' wife;  Chambers testified that he also participated in drafting the document.

FN4. Since approximately March 2013, the commercial space has been occupied by O & S Grocery, LLC, a company owned by Omar Harris' fiancée, Samech Bellegarde.   Bellegarde and Harris are both listed as tenants on the rental application.  (Ex. 16.)   The application was approved by Harris on January 1, 2013, as “landlord or representative.”  (Id.) The application lists the rent for the space as $1,000 per month.   Chambers testified that the LLC has not paid any rent for the space..  FN4. Since approximately March 2013, the commercial space has been occupied by O & S Grocery, LLC, a company owned by Omar Harris' fiancée, Samech Bellegarde.   Bellegarde and Harris are both listed as tenants on the rental application.  (Ex. 16.)   The application was approved by Harris on January 1, 2013, as “landlord or representative.”  (Id.) The application lists the rent for the space as $1,000 per month.   Chambers testified that the LLC has not paid any rent for the space.

FN5. The court takes judicial notice of the pleadings in the MDC action, captioned Metropolitan District v. Ewan Sheriff, Superior Court, judicial district of Hartford at Hartford, Docket No. HHD CV13–6038693S..  FN5. The court takes judicial notice of the pleadings in the MDC action, captioned Metropolitan District v. Ewan Sheriff, Superior Court, judicial district of Hartford at Hartford, Docket No. HHD CV13–6038693S.

FN6. The MDC applied for an activation of the receivership in October 2013, and its application was granted on December 9, 2013.  (Ex. 8, Ex. 14.)   As of December 9, 2013, a balance of $9,628.85 was owed to the MDC. (Ex. 32.).  FN6. The MDC applied for an activation of the receivership in October 2013, and its application was granted on December 9, 2013.  (Ex. 8, Ex. 14.)   As of December 9, 2013, a balance of $9,628.85 was owed to the MDC. (Ex. 32.)

FN7. Sheriff negotiated a third mortgage extension, to January 1, 2014, on his own, and he paid the fee and mortgage payment required by the lender for that extension.  (Ex. 7;  Ex. 28;  Ex. 29.)   He also made the December 2013 mortgage payment.  (Ex. 30.).  FN7. Sheriff negotiated a third mortgage extension, to January 1, 2014, on his own, and he paid the fee and mortgage payment required by the lender for that extension.  (Ex. 7;  Ex. 28;  Ex. 29.)   He also made the December 2013 mortgage payment.  (Ex. 30.)

FN8. General Statutes § 49–33 provides in pertinent part:(a) 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 or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.(b) The claim is a lien on the land, building and appurtenances or lot ․.  FN8. General Statutes § 49–33 provides in pertinent part:(a) 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 or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.(b) The claim is a lien on the land, building and appurtenances or lot ․

FN9. General Statutes § 49–35b(a) provides in pertinent part:  “Upon the hearing held on the application or motion set forth in section 49–35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien ․”.  FN9. General Statutes § 49–35b(a) provides in pertinent part:  “Upon the hearing held on the application or motion set forth in section 49–35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien ․”

FN10. See Exhibit Z, invoices dated 9/30/2012, 2/28/2013, 4/28/2013, 5/30/2013, 6/30/2013, 8/30/2013, and 9/10/2013..  FN10. See Exhibit Z, invoices dated 9/30/2012, 2/28/2013, 4/28/2013, 5/30/2013, 6/30/2013, 8/30/2013, and 9/10/2013.

FN11. See Exhibit Z, invoices dated 5/30/2012 and 6/30/2012..  FN11. See Exhibit Z, invoices dated 5/30/2012 and 6/30/2012.

FN12. See Exhibit Z, invoices dated 4/28/2013 and 9/10/2013..  FN12. See Exhibit Z, invoices dated 4/28/2013 and 9/10/2013.

FN13. Ex. Z, invoices dated 4/30/2012 and 8/30/2013..  FN13. Ex. Z, invoices dated 4/30/2012 and 8/30/2013.

FN14. The invoice describes the “Commercial space” item as follows:  “Demo the entire store and rebuild a new store.   The floor joists are all dilapidated, replace old laminate with new ceramic tiles, ceiling needs to replaced, counter space needs to replaced, re-position the counter space towards the rear of the store, rebuild entire Bathroom, rebuild entire washroom, sheetrock entire store, bathroom, wash room.   Install main beams in basement.   The entire store needs to be fully gutted before any form of business can be conducted.”   Ex. Z..  FN14. The invoice describes the “Commercial space” item as follows:  “Demo the entire store and rebuild a new store.   The floor joists are all dilapidated, replace old laminate with new ceramic tiles, ceiling needs to replaced, counter space needs to replaced, re-position the counter space towards the rear of the store, rebuild entire Bathroom, rebuild entire washroom, sheetrock entire store, bathroom, wash room.   Install main beams in basement.   The entire store needs to be fully gutted before any form of business can be conducted.”   Ex. Z.

Huddleston, Sheila A., J.