DocketNumber: No. CV-98 0061746
Citation Numbers: 1998 Conn. Super. Ct. 15019
Judges: CURRAN, J.
Filed Date: 12/23/1998
Status: Non-Precedential
Modified Date: 4/17/2021
The facts of the case are as follows. The owners contracted with International Home Improvers Company ("general contractor") for certain home improvements. The general contractor, in turn, entered into a subcontract with Cameron for plumbing and heating services which were performed between March 5, 1997 and July 28, 1997. The owners' contract with the general contractor was for a total fee of $81,756.00. The owners paid the entire sum to the general contractor with the exception of $7,500. This latter payment was withheld by the owners when they discovered defects, the correction of which would exceed the amount due the general contractor under the contract.
In the meantime, however, Cameron was still due $4,425.00 as payment for service work performed. On August 25, 1997, Cameron notified the owners of his intent to file a lien to secure the amount in question. On August 28, 1997, Cameron filed a certificate of Mechanic's Lien against the owner.
The owners have now filed a motion to discharge the mechanic's lien. Specifically, the owners argue that since the general contractor has received full payment less the reasonable cost of satisfactory completion of the contract, there is no identifiable fund to which the mechanic's lien can attach. Cameron has filed an objection to the motion to discharge and argues that there exist questions of fact that render discharge of the lien inappropriate.
Mechanic's liens are provided for by General Statutes §
"These provisions make it clear that a contractor's right to recover on a mechanic's lien is not unlimited, despite the contractor's own good faith observances of the statutes."Rene Dry Wall Co. v. Strawberry Hill Associates,
In the present case, the owners paid all progress payments to the general contractor due under the contract for $81,756.00 with the exception of the $7,500.00 that was withheld when the owners discovered defects in the work and materials requiring corrections. According to the affidavits of the owners, the cost to repair the faulty work and damage caused by the general contractor is estimated at an additional $27,775.00. Moreover, the owners attest that all payments made to the general contractor occurred prior to the receipt of the mechanic's lien. The evidence in the present case indicates that the mechanic's lien should be discharged as the statutes creating the mechanic's lien prohibit a lien where contractual liability is exceeded by good faith payments together with the owners' costs of completion. CT Page 15021
Nonetheless, Cameron suggests that there exist issues of fact which prohibit the discharge of the mechanic's lien at this time. Specifically, Cameron suggests questions of fact exist in regard to 1) whether all payments to the general contractor were made prior to receipt of the notice of lien; 2) whether the estimate offered by the owners is correct; 3) the amount of payment made by the owners to the general contractor; 4) whether the owners knew that Cameron was owed money and; 5) the furnishing of additional materials to the owners by Cameron that were outside the scope of the contract.
Upon a motion to discharge a mechanic's lien, the lienor is required to establish that there is probable cause to sustain the validity of his lien. General Statutes §
Though Cameron claims that there exist questions of fact which preclude the granting of the motion to discharge, Cameron has not met its burden of demonstrating probable cause as to its success.
The evidence before the court shows that the payments to the general contractor, combined with the estimated costs of completing the contract, greatly exceed the amount of the lien held by Cameron. Since §
Moreover, there is no evidence to suggest that the owners' payments to the general contractor were not made in good faith. Neither Cameron's allegation that the owners knew that Cameron had not been paid, nor Cameron's allegation that it had supplied materials to the owners outside of the contract with the general contractor, demonstrate probable cause for a mechanic's lien. As held in Rene Dry Wall Co. v. Strawberry HillAssociates, supra,
The defendant owners' motion to discharge the lien is granted.
The Court
Curran, J.