Opinion
No. CV 04 0200239 S
November 3, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The plaintiff, Tech-Know House, LLC ("Tech-Know House") filed an action on April 20, 2004, against Steven A. Cohen, Alexandra M. Cohen a/k/a Alex Cohen, Bourke Matthew Contracting Company, Inc. and Ceci Brothers, Inc. to foreclose a mechanic's lien against property owned by Steven A. Cohen and Alexandra Cohen and located at 30 Crown Lane in the Town of Greenwich.
The defendants, Steven A. Cohen and Alexandra M. Cohen, move to dismiss the foreclosure action due to the invalidity of the lien. The defendant's contend that the court lacks subject matter jurisdiction because the plaintiff's mechanic's lien is invalid for failing to comply with the statutory requirements of Connecticut General Statutes §§ 49-33 and 49-34 in that: a) the lien fails to contain the statutorily required oath; (b) the lien fails to contain the correct commencement date of the performance of services or furnishing of materials; and c) the lien describes premises which do not belong to the defendants and on which the plaintiff neither performed services nor furnished materials.
Because the court finds that the plaintiff's mechanic's lien fails to contain the statutory required oath, and is therefore invalid, it is not necessary for the court to address the defendants' other grounds for invalidating the plaintiff's mechanic's lien.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." Kizis v. Morse Diesel, Inc., 260 Conn. 46, 57, 794 A.2d 498 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted). Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
In ruling on a motion to dismiss the "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). Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotations marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong." Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). "[O]nce the question of lack of jurisdiction of a court is raised, [it] 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." Community Collaborative of Bridgeport v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).
The defendants argue that the plaintiff's mechanic's lien is invalid because, inter alia, it was not sworn to by the lienor and therefore does not meet with the requirements of Connecticut General Statutes § 49-34. More specifically, the defendants contend that § 49-34 requires the performance or execution of an oath swearing that the facts contained in the document are true and that the written oath must appear in the certificate mechanic's lien. The defendants contend that the plaintiff's mechanic's lien lacks such written oath and is therefore invalid. The plaintiff argues that the notary's statement on its lien that the signer "made solemn oath that the facts stated therein are true and that the amount above is justly due and owing to Tech-Know House LLC" is sufficient.
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 v. Ethan Allen, 26 Conn.App. 426, 429, 601 A.2d 1040 (1992). Moreover, the guidelines for interpreting mechanic's legislation are well established. F.B. Mattson Company, Inc. v. Tarte, 247 Conn. 234, 719 A.2d 1158 (1998); J.C. Penney v. Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 556 A.2d 990 (1989). Although the mechanic's lien statute creates a statutory right in derogation of the common law; F.B. Mattson, 247 Conn., supra at 238; its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. Id. The court's interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of liberal construction. Id.
Connecticut 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 . . .
Connecticut General Statutes § 49-34 (as revised to January 1, 2003).
Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 620 A.2d 118 (1993) is dispositive of the issue of the oath requirement set forth in C.G.S. § 49-34. In Red Rooster, supra, the Supreme Court held that a notary's acknowledgment is insufficient to satisfy the requirement that the lienor take an oath per C.G.S. § 49-34. The court reasoned that:
[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, we have 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 . . . An oath is a solemn and formal declaration that the contents of a declarative, written or oral, are true, and it must be administered in accordance with the ceremony and procedures set forth in 1-22. Section 1-22 requires, therefore, that some ceremony be conducted if an oath is obligated by statute or other law. To make a valid oath, there must be, in some form, an unequivocal and present act by which the affiant consciously takes upon him or herself the obligation of an oath . . . Stated otherwise, in order to have a valid statement under oath, the attention of the person to be sworn must be called to the fact that his or her statement is not a mere asseveration but must be sworn to, and he or she must do some corporal act in recognition of this.
(Internal quotation marks omitted). Red Rooster, supra 224 Conn. at 578.
In Red Rooster, 224 Conn., supra at 579, the notary was the only individual to sign a statement that contained language approximating an oath. Moreover, the signed statement of the notary asserted only that Red Rooster's president, Jeremy Berkowitz, had sworn that the facts contained in the certificate were true. Thus, the court concluded that "[i]n light of the fact that (1) an oral oath was not administered, (2) Red Rooster's president did not sign a statement swearing to the truth of the facts contained in the certificate, and (3) 1-22 requires that some ceremony be performed in making an oath, the mechanic's lien certificate was not `sworn to.'" Red Rooster, 224 Conn., supra at 580. "To 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). Red Rooster, 224 Conn., supra at 579-80.
In the instant case, the lien contains language almost identical to that described in the Red Rooster, supra, case. Accordingly, because there is no evidence of a written oath that the contents of the plaintiff's lien certificate are true, said lien is thus invalid and defendant's motion to dismiss is hereby granted.
Wilson, J.