Opinion
WWMCV176011434S
06-29-2017
Davis S. Labossiere v. T& A Mechanical, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (APPLICATION FOR DISCHARGE OF MECHANIC'S LIEN #101, SHORT CALENDAR, MAY 8, 2017)
CALMAR, J.
In this application, the plaintiff, David S. Labossiere, pursuant to General Statutes § 49-35a, seeks to discharge a mechanic's lien filed against his property by the defendant, T& A Mechanical, LLC. The matter was heard on May 8, 2017, and the parties were directed to file briefs on the issue of whether or not there is probable cause to sustain the validity of the lien.
The facts relevant to disposition of this issue are not in dispute. The plaintiff was the owner of certain development rights of Williamsville Landing, a condominium located in the town of Killingly. On or about August 19, 2016, the defendant delivered certain duct work to a unit then under construction by the plaintiff. The actual unit number involved was not identified, but the property was described as " 102 Jessica Lane" in the defendant's invoice.
On September 8, 2016, additional ductwork was delivered to the site by the defendant for inclusion in three additional units under construction. The address was still referred to simply as " 102 Jessica Lane." It is undisputed that the invoices totaled $17,600 and that the plaintiff paid a deposit of $4,000, leaving a balance of $13,600. Plaintiff did not make any additional payment for the materials delivered.
On November 25, 2016, defendant recorded a mechanic's lien on the Killingly land records purporting to apply to " 102 Jessica Lane." The body of the lien recites that it is being placed pursuant to a contract between the defendant and Labossiere Construction, LLC, and contains the following declaration: " The names of the entity against whom the lien is being filed are: LABOSSIERE CONSTRUCTION, LLC, a Connecticut Limited Liability Company having an address of 259 MECHANIC STREET, DANIELSON, CT 06239." (Def. Ex. B.)
In addition, the certificate of lien is witnessed by two witnesses and contains the following clause, signed by a notary: " On this 25th day of November 2016, before me, the undersigned officer, personally appeared Anthony J. Pellecchia, who acknowledged himself to be the duly authorized member of T& A Mechanical, LLC, and that he, as such being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing herein are true [sic] and that the sum of THIRTEEN THOUSAND HUNDRED six [sic] DOLLARS AND ZERO ONE HUNDREDTHS CENTS ($13,600.00) plus interest, as near as the same can be ascertained, with interest is due of said company." (Emphasis in original.)
The plaintiff filed this application to discharge the mechanic's lien on the grounds that: (1) the lien was placed against the wrong entity, since the plaintiff, David S. Labossiere individually, and not Labossiere Construction, LLC, is the owner of the premises; and (2) that the lien is not sworn to, as required by General Statutes § 49-34.
The defendant asserts in its memorandum dated May 13, 2017, that it has met the probable cause standard. Specifically, the defendant states, " it is clear that T& A MECHANICAL, LLC has established that it has a valid mechanic's lien, Exhibit B, which is a full exhibit, describing the property described in Exhibit A, noting the volume and page number. Exhibit B is properly and validly subscribed to under the statute. Exhibit B Names the DAVID S. LABOSSIERE who is the sole owner of the Limited Liability Company named in the mechanic's lien. Exhibit C a full exhibit clearly refers to ownership of the property, which was served before and after the lien was filed. Exhibit B unequivocally references Exhibit C. All parties are named in Exhibit B. Exhibit C is very clear about ownership of the property. Exhibit B refers directly to the property described in the deed by volume and page and address. Sufficient to place anyone on notice of this mechanic's lien upon 102 Jessica Lane found at Volume 1303 Page 291."
I
A Lien Must Be Subscribed and Sworn
" Section 49-34 sets forth the required contents of a certificate of mechanic's lien." ProBuild East, LLC v. Poffenberger, 136 Conn.App. 184, 189, 45 A.3d 654 (2010). " General Statutes § 49-34 includes five requirements to filing a valid mechanic's lien." Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn.App. 125, 129, n.7, 891 A.2d 133 (2006). " If any of those requirements are not met, the lien is invalid." Id.
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 (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) 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, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35." (Emphasis added.)
Review of the lien indicates that while it was acknowledged, there is no indication on the lien that it was subscribed and sworn. An acknowledgment is not equivalent to the swearing of an oath. See Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 784, 871 A.2d 1057 (2005) (stating that a certificate which merely recites that the claimant " acknowledges" execution of the lien is insufficient). Specifically, " [a]n acknowledgment is a verification of the fact of the execution of the instrument but not of its contents." J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 514, 555 A.2d 990 (1989). " 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." Id.
Review of the notice of intent to lien does indicate that the defendant took part in an oath ceremony by a commissioner of the Superior Court.
Accordingly, our Courts have consistently held that " a certificate of mechanic's lien that was merely acknowledged, but not sworn to . . . [is] invalid." Id., 515. See also Bell & Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn.Supp. 296, 298, 182 A.2d 339 (1962). This is particularly important in connection with a certificate of lien since such a certificate may take precedence over prior encumbrances and furnish the basis for a foreclosure of the subject premises. " To validate a certificate without a written 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." J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 518.
Here, the certificate of the notary public who took the acknowledgment does not include either the word " sworn" or " oath" nor does it contain a statement that the declaration is made under penalty of perjury, as required for unsworn declarations. See General Statutes § 1-65ff. Accordingly, there is nothing in the certificate from which it can be concluded that the document was sworn to or the contents verified and this omission renders the lien unenforceable on its face.
II
Failure to Name the Correct Owner on a Mechanic's Lien
The plaintiff also argues that the lien is invalid because it was not filed against the owner of the property.
General Statutes § 49-34 requires that a mechanic's lien state the person or persons against whom the lien is being lodged and that it be recorded by the town clerk with the deeds of land. See General Statutes § 49-34. It is undisputed that in this case, the lien identifies the liened party as " Labossiere Construction, LLC, " a Connecticut limited liability company. It is likewise undisputed that Labossiere Construction, LLC was not the owner of the property and, in fact, never had an interest in the property. (Def. Ex. A; Test. of A. Pellecchia and D. Labossiere.) Here, the property in question is owned of record by David S. Labossiere, who is not named in the certificate of lien except in his capacity as " agent for Labossiere Construction, LLC." (Def. Ex. B.)
The defendant, however, counters that any discrepancy in ownership is merely a misnomer, based upon the express reference to the warranty deed in the certificate. This court does not agree.
It is acknowledged that " our courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed." First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 816, 646 A.2d 812 (1994). In the present case, however, the mistake is not a misnomer, but an error in completely naming the wrong owner. " Failure to name the proper owner on the mechanic's lien . . . is a violation of § 49-34 and renders the mechanic's lien invalid as a matter of law." Park Ridge Owners Ass'n, Inc. v. MBM, Inc., Superior Court, judicial district of New Haven, Docket No. CV-00-0444968-S, (April 19, 2002, Zoarski, J.T.R.). Moreover, naming the entirely wrong party as owner would necessarily mean that the town clerk could not properly index the lien in the land records. See, e.g., First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. 821-22.
For example, here, the defendant's argument relies on Big Y Trust v. Wesco Distribution, Inc., Superior Court, judicial district of Windham, Docket No. CV-95-0052042-S (December 18, 1995, Sferrazza, J.) [15 Conn.L.Rptr. 501, ]. Specifically, the defendant argues that like Big Y Trust, the misidentification in the present case is not substantial enough to rise to the level of misnomer. In Big Y Trust, however, the certificate of lien identified the owner of the liened property as " Big Y Supermarkets" while the deed referred to the " Big Y Trust." Therefore, the names were similar. Accordingly, in Big Y Trust, the court, (Sferrazza, J.) relied on two findings in deciding that it was a misnomer, including: (1) the " similarity of the names" used; and (2) the fact that the description included in the certificate of lien contained an express reference to the warranty deed with the correct identification of the property owner. Neither factor is applicable here.
Specifically, in the present case, a party searching for Labossiere Construction, LLC in the index to the land records would not be led to entries under the name of David S. Labossiere and, conversely, no member of the public searching the name David S. Labossiere (the actual owner of the property) would be directed to transactions involving Labossiere Construction, LLC. This is not like the situation in Big Y Trust, supra, Superior Court, Docket No. CV-95-0052042-S,, where the names used both referred to entities and began with the same spelling. Moreover, the metes and bounds description attached to the certificate of lien in this case contains no reference to the deed into David S. Labossiere or any mention of David S. Labossiere as having an interest in the property. Thus, there is nothing contained in the certificate that would direct a title searcher to inquire as to any owner other than Labossiere Construction, LLC or to research any other specific deed.
Accordingly, this court finds that there is no probable cause to sustain the validity of the mechanic's lien in this matter. The lien is deficient on its face, as a matter of law, due to the absence of an oath by the claimant and the omission of a declaration of the name of the owner of the property against whom the lien is being placed.
For the foregoing reasons, this application is granted and the lien is discharged.