Opinion
No. CV06-5001213S
August 8, 2007
Memorandum of Decision on Motion to Dismiss (No. 113)
This is an action to foreclose a mechanic's lien on property known as 160 Kellogg Drive in Wilton owned by the defendants Richard Collender and Sarah Ashkinaze. The defendant National City Bank ("National City") holds a mortgage on the property. National City has moved to dismiss the case for lack of subject matter jurisdiction in that it claims that the plaintiff's mechanic's lien is fatally flawed in that it fails to comply with Connecticut General Statutes § 49-34, which requires that the recorded certificate of mechanic's lien must be "subscribed and sworn to by the claimant." A copy of the plaintiff's certificate of lien is attached to the complaint as Exhibit "A." There is no claim of any insufficiency of the substantive content of the certificate of lien signed by the plaintiff Stephen McDonough. National City's entire claim is that the certificate is not properly "subscribed and sworn to" as interpreted by the Supreme Court in Red Rooster Construction Company v. River Associates, Inc., 224 Conn. 563 (1993) and several subsequent Superior Court decisions, holding that a certificate of mechanic's lien signed by the lienor without any recitation of being under oath is insufficient. As said by the Red Rooster court: "In the present case, Red Rooster's president did not sign an oath that the facts contained in the certificate were true. Indeed, the notary was the only individual to sign a statement that even contained language approximating an oath." id. 224 Conn. At 579. The defendant National City claims that the certificate signed by plaintiff McDonough appears to have been signed in the same fashion as the certificate found defective in Red Rooster in that the certificate of McDonough contains no reference to or acknowledgment of an oath having been administered.
David Nichols Builders, Inc. v. Mayor, Docket No. CV04-4007221855S, Superior Court, Judicial District of Windham at Putnam (April 7, 2005, Riley, J.), 2005 Conn.Super.LEXIS 1012, 2005 Ct.Sup. 6035, 39 Conn. L. Rptr. 64; and Tech Know House v. Cohen, Docket No. CV-04-0200239S, Superior Court, Judicial District of Stamford/Norwalk at Stamford (November 3, 2004, Wilson, J.), 2004 Ct.Sup 16627.
In both Red Rooster and this case, there was an attestation clause signed by a Notary Public attesting that the lien certificate had been executed under oath.
The motion to dismiss must be denied for two reasons. First, it is clear that failure to adhere to the formalities of Conn. Gen. Stat. § 49-34, although possibly resulting in a finding of lien invalidity, 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., 88 Conn.App. 775, 778 (2005) cert. granted. 274 Conn. 909 (appeal withdrawn). Secondly, to the extent that Red Rooster Construction Company v. River Associates, Inc., supra, can be read to require the lienor to recite the existence of an oath or affirm in writing over his or her own signature the truth of the facts contained in a certificate of mechanic's lien, that reading of Red Rooster is no longer valid:
Thus, in Red Rooster Construction Company v. River Associates, Inc., 224 Conn. 579, this court affirmed the trial court's decision invalidating the lien because no oral oath had been administered, no oath ceremony had been performed, and the lien lacked "a statement swearing to the truth of the facts contained therein." We do not read this decision as establishing a requirement that a mechanic's lien must contain a signed, written oath in order to be valid.
Moreover, the defendant's claim that § 49-34(1)(C) requires an affidavit or similar writing is not in keeping with the plain language of § 49-34, which makes no mention of an affidavit requirement nor of a requirement that a written recital of the claimant's oath appear on the lien. The statute requires only that the lien be "subscribed and sworn to . . ." General Statutes § 49-34(1)(). This court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein . . . In determining legislative intent, in the absence of ambiguity, we look only to what the legislature actually said, not to what it might have meant to say . . . If the legislature intended to require that an affidavit be contained within the mechanic's lien, it knows how to enact such a requirement.
(Internal quotation marks omitted. Citation omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 682 (2006).
The Supreme Court in Stone-Krete Construction also noted its "disagreement" with the majority opinion of the Appellate Court in Louis Gherlone Excavating, Inc., supra, which had interpreted Red Rooster Construction Company as requiring a recitation of an oath or the truth of facts in a certificate of mechanic's lien. Stone-Krete Construction, Inc. v. Eder, supra, 280 Conn. 672, note 8.
As previously noted, although the Supreme Court had granted cert., the appeal of Louis Gherlone Excavating, Inc. was withdrawn before any action by the Supreme Court. The "disagreement" with the Appellate Court majority in Louis Gherlone Excavating, Inc. as expressed in Stone-Krete Construction Inc., did not extend to the holding of Louis Gherlone Excavating, Inc. that a failure to comply with § 49-34s "subscribed and sworn to" requirement is not a jurisdictional defect.
City National's claims for dismissal having been rejected by recent appellate authority, the motion to dismiss is therefore denied.