Opinion
No. CV 04 00721855
April 7, 2005
MEMORANDUM OF DECISION RE #106 MOTION TO DISMISS
FACTS
The plaintiff, David Nichols Builders, Inc., filed a complaint dated February 9, 2004 against the defendants, Michael Mavor and Edith Mavor, seeking foreclosure of a mechanic's lien, possession of the liened premises and monetary damages. The complaint alleges that the defendants owe the plaintiff a sum of $41,189.53 for labor and materials the plaintiff provided to the defendants for the construction of a dwelling located at 601 Chestnut Hill Road, Killingly, Connecticut. The plaintiff further alleges that to secure said debt and the lawful interest thereon, the plaintiff served on the defendants and recorded a notice of mechanic's lien at the Killingly Land Records.
On March 24, 2005, the defendants filed a motion to dismiss the plaintiff's complaint, accompanied by a supporting memorandum of law, on the ground that the court lacks subject matter jurisdiction. The defendants argue that the plaintiff's mechanic's lien is invalid for failing to comply with the requirements of General Statute § 49-34(1)(C) because said lien does not contain the statutorily required oath. On April 4, 2005 the plaintiff filed a memorandum of law in opposition to the motion to dismiss arguing that it complied with the statutory requirements governing the execution of a mechanic's lien.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). When a party moves to dismiss an action "the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy LLC v. New London, 262 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003).
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [i]t must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver." (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 430, 541 A.2d 1216 (1988).
The defendants argue in their memorandum in support of their motion to dismiss that the plaintiff's mechanic's lien fails to contain the statutorily required oath because said lien was not sworn to by the lienor. The defendants further contend that the notary's acknowledgment is insufficient to satisfy the requirements that the lienor perform or execute an oath swearing that the facts contained in the lien are true and that the text of the oath must appear on the face of the certificate of mechanic's lien. The plaintiff argues that § 49-34 does not mandate that the text of the oath be stated on the lien and that there is nothing presently before the court to contradict the statement on the lien certificate indicating that the claimant swore to the truth of his claim.
The Connecticut Supreme Court has established a well-settled rule that § 49-34 "provides that a mechanic's lien is invalid unless the certificate of the lien filed on the land records is `subscribed and sworn to by the claimant' [A] requirement that a document be `sworn to' contemplates the execution of an affidavit that the facts contained in it are true . . . An oath . . . signifies the undertaking of an obligation `to speak the truth at a time [that] may deeply affect the rights and the character of individuals.' . . . Consequently, [the court has] held that the mechanic's lien statute requires the performance or execution of an oath swearing that the facts contained in the document are true." (Citations omitted; internal quotations marks omitted.) Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 577-78, 620 A.2d 118 (1993). See also J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 513-14, 555 A.2d 990 (1989). In Red Rooster Construction Co. v. River Associates, the court held that the claimant did not satisfy the statutory oath requirement when he merely signed the certificate of mechanic's lien in the presence of a notary. Id., 577. The court emphasized that the notary did not administer an oral oath, nor did the claimant sign an oath. Id. In ruling that the mechanic's lien was defective the court concluded that "[t]o validate a mechanic's lien certificate without any evidence that the claimant performed some act or form of ceremony indicating that the claimant consciously undertook the obligation of an oath would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public." (Internal quotation marks omitted.) Id., 579.
The court also highlighted that the claimant's "signature does not follow any passage stating that it was his solemn oath that the facts stated in the certificate were true. His signature merely appears at the end of the body of the certificate stating the facts allegedly entitling him to a mechanic's lien." Red Rooster Construction Co. v. River Associates, supra, 577.
Since the seminal case of Red Rooster, the Superior Court has expounded upon the Supreme Court's decision by recognizing that the court found that the mechanic's lien "did not comply with the requirements of § 49-34(1)(C) because the affiant merely signed a certificate containing a statement by the notary that the claimant had appeared and sworn to the accuracy of the facts contained therein. The court emphasized that the [claimant's] signature did not appear subsequent to any passage in which the [claimant], as affiant, stated it was his solemn oath that the facts contained in the certificate were true." (Emphasis in original.) Absolute Tank Removal, LLC v. Bryan, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 0404619 (March 22, 2004, Doherty, J.). Similarly, the Superior Court has reiterated the Supreme Court's distinction between acknowledging and verifying a document by explaining that "[i]t is not uncommon for the legislature to require that certain documents be acknowledged or verified. Such an acknowledgment is a public declaration or a formal statement of the person executing an instrument made to the official authorized to take the acknowledgment that the execution of that instrument was his free act and deed; . . . On the other hand, a requirement that a document be `sworn to' contemplates the execution of an affidavit that the facts contained in it are true . . . An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents . . . A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. (Citations omitted; internal quotation marks omitted.) Jay Alpert Architects, AIA, PC v. Per Trellevik, Superior Court, judicial district of New Haven, Docket No. CV 02 0464431 (November 14, 2003, Arnold, J.)
In the present case, the court will grant the defendants' motion to dismiss the plaintiff's complaint because the plaintiff's mechanic's lien does not fully comport with § 49-34(1)(C). The mechanic's lien presently before the court is almost exactly like the one found in Red Rooster where the court held that unless said liens are "sworn to" by the lienor, the mechanic's lien is invalid. In both cases the mechanic's lien document filed in the land records, after recitation of the basis for the lien and a claim for same, signed by party claiming the lien, stated, ". . . personally appeared, and made solemn oath that the facts herein are true . . ." followed by the signature of the notary alone. As such, without a written oath appearing on the certificate of mechanic's lien, as well as the performance or execution of an oath swearing by the plaintiff, the present mechanic's lien, as that in Red Rooster, is ineffective pursuant to § 49-34(1)(C) and subsequent case law illuminating the statutorily required oath. See Red Rooster Construction Co. v. River Associates, supra, 224 Conn. 563; Absolute Tank Removal, LLC v. Bryan, supra, Superior Court, Docket No. CV 0404619; Jay Alpert Architects, AIA, PC v. Per Trellevik, supra, Superior Court, Docket No. CV 02 0464431.
The court notes that because the plaintiff has only filed a one-count complaint seeking to foreclose on a mechanic's lien, the court must dismiss the present complaint in its entirety. If, however, the complaint had set forth multiple counts, namely, claims under contract law or quantum meruit, portions of the complaint separate from the foreclosure of the mechanic's lien would have remained viable.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss the plaintiff's complaint.