Opinion
No. CV 00-0444968 S
April 12, 2002
MEMORANDUM OF DECISION
The plaintiff, Park Ridge Owners Association, Inc. (Park Ridge), filed a five count second amended complaint on November 2, 2001, asserting breach of contract, breach of express warranty of workmanship, breach of implied warranty of workmanship, Connecticut Unfair Trade Practices Act (CUTPA) and negligence against the defendant, MBM, Inc. (MBM). The complaint is a result of a written contract that was entered into by the parties on or around May 10, 2000, for the rehabilitation and renovation of specified units within Park Ridge that sustained fire and water damage. On October 23, 2000, a mechanic's lien was filed in an attempt to secure its claim against Park Ridge. On October 22, 2001, MBM filed a lis pendens in the town of Hamden in New Haven county. On October 24, 2001, MBM filed an amended answer, special defense and a two count counterclaim for an outstanding balance of $18,980.00 and foreclosure of the October 23, 2000 mechanic's lien. On November 9, 2001, Park Ridge filed a motion to dismiss count two of MBM's counterclaim with a supporting memorandum on the ground that the court lacks subject matter jurisdiction. MBM filed an untimely memorandum in opposition on December 10, 2001.
MBM filed its memorandum in opposition on December 10, 2001, the same day the motion was heard. The memorandum is untimely pursuant to Practice Book § 10-31(b), which states that "[a]ny adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record." "Practice Book . . . [§ 10-31 has] been amended so that a party who files an untimely memorandum is no longer deemed to consent to the granting of [the] motion. . . ." Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 12-13 n. 1, 578 A.2d 646 (1990). It is in the court's discretion to consider the merits of MBM's opposition. Ferguson v. Ga-Na-Den Too Apartments, Superior Court, judicial district of Windham at Putnam, Docket No. 63076 (September 20, 2000, Potter, J.) (see footnote two).
"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, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "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, 668 A.2d 1314 (1995).
A
Park Ridge first argues that the court lacks subject matter jurisdiction as to count two of MBM's counterclaim because MBM failed to file its foreclosure action within one year of recording its mechanic's lien pursuant to General Statutes § 49-39. Specifically, although Park Ridge concedes that on October 22, 2001, MBM timely recorded a lis pendens, Park Ridge contends that MBM's filing on October 24, 2001, of an action to foreclose the mechanic's lien by way of counterclaim was untimely.
General Statutes § 49-39 provides in relevant part: "A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later."
In opposition, MBM argues that the motion to dismiss count two of its counterclaim should be denied because the court has subject matter jurisdiction over its foreclosure action. MBM contends that the foreclosure action was initiated in the second count of the counterclaim, commenced by way of service of process and filing of the lis pendens on the land records on October 22, 2001. Although the return of process and pleading were filed with the court after October 22, 2001, MBM argues that does not negate the fact that the action was "commenced" within one year. MBM cites General Statutes § 52-592 and General Statutes § 52-593 to support the proposition that an action is commenced when service of process is made.
General Statutes § 52-592 (a) provides: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
General Statutes § 52-593 provides in relevant part: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
"In Connecticut, a mechanic's lien is a creature of statute and establishes a right of action where none existed at common law." H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 429, 601 A.2d 1040 (1992). "In order for a party to foreclose a mechanic's lien it must comply with the requirements of § 49-39. Compliance with § 49-39 mandates that the party seeking to foreclose the lien must, within one year from the date the lien is recorded, (1) commence an action to foreclose the lien, and (2) record a notice of lis pendens." Id., 430. If the statutory requirements of § 49-39 are not met, the lien becomes invalid and is discharged as a matter of law. See id. "Where such a lien has been discharged as a matter of law, a court is without jurisdiction to enter an award that is predicated on the lien's validity." Richard A. Banks Co. v. Bradley, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 94968 (March 23, 1993, Lewis, J.) ( 8 Conn.L.Rptr. 511, 512). "When language is plain and unambiguous, we need look no farther than the words themselves because we assume that the language expresses the legislature's intent. . . . Indeed, [a] basic tenant of statutory construction is that when a statute . . . is clear and unambiguous, [generally] there is no room for construction." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 279, 679 A.2d 347 (1996).
In the present case, MBM's amended answer, special defense and two count counterclaim are dated October 22, 2001, and date-stamped as being filed with the court on October 24, 2001. The marshal's return of service indicates, however, that this pleading was served on Park Ridge on October 22, 2001. Further, a second return of service indicates that the marshal filed the lis pendens on the Hamden land records and served Park Ridge with a certified copy of the lis pendens on October 22, 2001.
It is also noted that the certification page of MBM's amended answer, special defense and counterclaim indicates that the pleading was served on Park Ridge's attorney by mail on October 22, 2001, pursuant to the rules of practice. See Practice Book §§ 10-12, 10-13, 10-14.
"It has long been the law in this state that an action is deemed to be commenced on the date service is made on the defendant." Stingone v. Elephant's Trunk Flea Market, 53 Conn. App. 725, 729, 732 A.2d 200 (1999); see also Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996); Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 33-34, 392 A.2d 485 (1978). "[T]herefore . . . reliance on the date the plaintiffs cause of action was `filed,' or returned to the Superior Court, [is] improper." Stingone v. Elephant's Trunk Flea Market, supra, 730.
Park Ridge's argument that MBM failed to comply with the one year time requirement under § 49-39 is without merit. MBM timely recorded the lis pendens and commenced its foreclosure action by service of its counterclaim on Park Ridge on October 22, 2001, which is within one year of its recording of its October 23, 2000 mechanic's lien. Accordingly, Park Ridge's motion to dismiss the second count of MBM's counterclaim on the ground MBM failed to comply with § 49-39 is denied.
B
In addition, Park Ridge argues that it was never the owner of the property. (Plaintiffs Memorandum, Affidavit of Daniel Ioime, Esq., title examiner.) Therefore, MBM cannot foreclose on property that never belonged to Park Ridge. Furthermore, Park Ridge argues that the mechanic's lien erroneously names a party who was not the owner of record at the time of filing the lien, therefore, Park Ridge contends that MBM is in violation of General Statutes § 49-34 for not serving the mechanic's lien on the new owners within the statutorily required ninety-day period after termination of the project. The mechanic's lien names Mdjid and Mina Rasoulpour as owners of Park Ridge but, Park Ridge argues that, at the time the lien was filed, Dolores Johnson had owned the property for one month. (Plaintiffs Memorandum, Exhibit C.) Accordingly, Park Ridge argues that MBM's mechanic's lien is invalid because MBM is seeking to foreclose against a party with no ownership interest and whose lien is invalid on is face, therefore, the court lacks subject matter jurisdiction. In opposition, MBM contends that Park Ridge's arguments that it was never the owner of the property or that the proper owners were never served process is not an issue of subject matter jurisdiction.
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 . . . (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 famishing of materials . . . and (2) within the same time, or prior to the lodging of the certificate but 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."
The mechanic's lien is a creature of statute, and parties who invoke them must comply with the statutory requirements. See H.B. Bass Associates, Inc. v. Ethan Allen, Inc., supra, 26 Conn. App. 429. It is well established that "remedial statutes should be construed liberally in favor of those whom the law is intended to protect." Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 18, 688 A.2d 306 (1997). "We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics' liens in order to achieve the remedial purposes of the mechanics' lien statutes. Provisions of mechanics' lien law should be liberally construed so as to reasonably and fairly implement its remedial intent." (Internal quotation marks omitted.) J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 514, 555 A.2d 990 (1989). "Our interpretation [of the mechanic's lien statute], however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction." (Internal quotation marks omitted.) F.B. Mattson Co. v. Tarte, 247 Conn. 234, 238, 719 A.2d 1158 (1998). "Generosity of spirit does not . . . permit departure from reasonable compliance with the specific provisions of the statute." Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 551, 429 A.2d 796 (1980).
In the present case, MBM's mechanic's lien named Mdjid and Mina Rasoulpour as the owners of the property. (Plaintiffs Memorandum, Exhibit A.) Dolores Johnson, however, acquired ownership of the property on September 26, 2000. (Plaintiffs Memorandum, Exhibit C; Affidavit of Daniel Ioime, Esq., title examiner.) This mistake is not just a misnomer, rather, the error of naming the completely wrong owner yields the mechanic's lien invalid. Fisher Skylights, Inc. v. Mashantucket Pequot Indian Tribe, Superior Court, judicial district of New London at Norwich, Docket No. 104741 (July 11, 1994, Leuba, J.) ( 9 C.S.C.R. 843, 844); see also First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 817, 646 A.2d 812 (1994) ("Where . . . there has been ` no attempt to give an accurate and true description, then . . . the certificate ought to be held void, as no better than a total omission to attempt to comply with its provisions.'"). Properly checking the land records would have shown that Dolores Johnson obtained title to the property on September 26, 2000. Failure to name the proper owner on the mechanic's lien and notify them within the ninety-day statutory period is a violation of § 49-34 and renders the mechanic's lien invalid as a matter of law. Papa v. Greenwich Green, Inc., 177 Conn. 295, 416 A.2d 1196 (1979); see also Fisher Skylights, Inc. v. Mashantucket Pequot Indian Tribe, supra, 9 C.S.C.R. 844.
MBM's mechanic's lien is invalid pursuant to § 49-34 because the mechanic's lien named the wrong owner of the property and thus was never properly served in compliance with § 49-34. Therefore, because the lien is invalid, the court lacks subject matter jurisdiction to entertain MBM's foreclosure action. Fisher Skylights, Inc. v. Mashantucket Pequot Indian Tribe, supra, 9 C.S.C.R. 844; see also Steeltech Buildings Products v. Viola, Superior Court, judicial district of Hartford at Hartford, Docket No. 580266 (May 15, 2000, Wagner, J.); Raymond's Building Supply v. Santopietro, Superior court, judicial district of Waterbury, Docket No. 131319 (August 15, 1996, Pellegrino, J.); Richard A. Banks Co. v. Bradley, supra, 8 Conn.L.Rptr. 512. For the foregoing reasons, Park Ridge's motion to dismiss count two of MBM's counterclaim for lack of subject matter jurisdiction is granted.
___________________ Howard F. Zoarski, Judge Trial Referee