Opinion
No. CV 07 5004584
February 5, 2008
MEMORANDUM OF DECISION RE MOTION #103 MOTION TO DISMISS
The plaintiff alleges in its complaint that on April 12, 2006, the defendants were in possession of a certain piece of land situated in the Town of Darien and known as 275 Noroton Avenue. The plaintiff further alleges that on or before that date the defendant Eugene Striano d/b/a B.D.V. Development, LLC and Striano individually signed an unconditional guarantee for payment in favor of the plaintiff for all materials provided to B.D.V. for the aforementioned property. The plaintiff alleges that it provided materials to B.D.V. for improvements on the aforementioned property.
The plaintiff further alleges that on September 5, 2006 it caused a State Marshal to serve the defendants with written notice that it had commenced to furnish materials for the subject property and intended to claim a lien upon said property. On that same date the plaintiff filed "a certificate of mechanics lien, duly signed and sworn to, with the Town Clerk of the Town of Darien . . ."
On July 16, 2007 the plaintiff commenced the instant action by serving the defendants with a copy of the writ summons and complaint.
On October 24, 2007, the defendant EverHome Mortgage filed a motion to dismiss this matter for reason of lack of subject matter jurisdiction. The defendant specifically asserts that this court is without subject matter jurisdiction because the plaintiff's mechanic's lien is invalid.
Standards
"[J]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). Jurisdiction of the subject matter "cannot be waived or conferred by consent either in the trial court or [on appeal] . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon . . . Moreover, whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to previous rulings." (Citations omitted; internal quotation marks omitted.) In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13 (1995).
Discussion
The defendant asserts that this court is without subject matter jurisdiction because the mechanic's lien upon which this action is based was defective. The defendant specifically argues that the lien does not comply with the provisions of § 49-34(c) of the Connecticut General Statutes. This section of the statute provides that a mechanic's lien must be subscribed and sworn to by the person performing the services or furnishing the materials.
It is undisputed that the certificate of mechanics lien filed by the plaintiff did not have a page containing the plaintiff's oath. Although the defendant argues that this defect deprives this court of subject matter jurisdiction, this court disagrees.
"[F]ailure to adhere to the formalities of Conn. Gen. Stat. § 49-34, may possibly result in a finding of the invalidity of a mechanics lien, it does not deprive the court of subject matter jurisdiction to hear the case and decide the issue of lien validity or invalidity on the merits." Louis Gherlone Excavating v. McLean Construction Company, Inc., 707 Conn.App. 775, 778 (2005) cert. granted. 274 Conn. 909 (appeal withdrawn).
McDonough v. Collender, Judicial District of Stamford/Norwalk at Stamford d.n. CV06-5001213S (Aug. 8, 2007, Jennings, J.) [44 Conn. L. Rptr. 209].
Conclusion
For all of the foregoing reasons, the motion to dismiss for lack of subject matter jurisdiction is denied. So ordered.