Opinion
No. 032 11 81
May 22, 1995
MEMORANDUM OF DECISION
As framed by the parties, the issue before the court is whether a mechanic's lien filed by the named defendant fails on its face to comply with General Statutes § 49-34. The plaintiff has filed an application to discharge that lien claiming that it fails to (1) state that "the amount claimed is justly due" and (2) is not "sworn to" by the plaintiff. I
General Statutes "Sec. 49-34. Certificate of lien to be recorded and notice given to owner. 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) 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 document in question provides as follows:
"MECHANIC'S LIEN "Notice is hereby given that in April, 1994, Alvin Construction Company, Inc., d.b.a. A and O General Contracting, Inc., with an address of 953 East Main Street, Bridgeport, CT. 06608 first provided labor and materials for the purposes of improvements and renovation to property known as 1841-1853 Stratford Avenue, Bridgeport, Connecticut more particularly described as follows: [property description deleted]. . . . "The owner of which property is TechniCo-op, with its place of business being 114 State Street, Suite 101, Bridgeport, CT 06601. "The last day of providing the labor and materials was the tenth (10th) day of December, 1994. "Alvin Construction Company, Inc. d.b.a. A and O General Contracting, Inc., claims a lien amount, including extras, of one hundred and sixty thousand dollars ($160,000). "Dated this 9th day of February, 1995 at Bridgeport, CT. "s/ Angel Luis Roman s/ Alvin O'Neal — ----------------- ---------------- Alvin O'Neal, President ------------------- "Sworn and subscribed to this 9th day of February, 1995 "s/ [Notary's signature and seal]" ----------------------------------
General Statutes § 49-34 requires that the lien be "subscribed and sworn to by the claimant. . . ." The plaintiff relies heavily on J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989). That case, however, held only "that the oath must appear in writing on the certificate of mechanic's lien for it to be valid under the statute." Id., 511. Here, the certificate of lien states that it was "subscribed and sworn to". More apposite is Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 620 A.2d 118 (1993). There, as here, the signature of the president of the liening corporation was notarized. The court held that the certificate of lien was deficient. In Red Rooster, however, the holding of the court was expressly based on the confluence of three factors: "(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) [General Statutes] § 1-22 requires that some ceremony be performed in making an oath. . . ." Id., 579. Here, only the second factor exists. While the issue is a close one, this court holds that the certificate of lien, on its face, does not fail to satisfy the oath requirement of General Statutes § 49-34.
General Statutes "Sec. 1-22. Ceremony. The ceremony to be used, by persons to whom an oath is administered, shall be the holding up of the right hand; but when any person, by reason of scruples of conscience, objects to such ceremony or when the court or authority by whom the oath is to be administered has reason to believe that any other ceremony will be more binding upon the conscience of the witness, such court or authority may permit or require any other ceremony to be used."
II
The plaintiff next claims that the certificate of lien is invalid because it does not state that the amount claimed is "justly due". Concededly, the certificate does not contain these words.
In First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 646 A.2d 812 (1994), the court restated that "[i]t is well established that a mechanic's lien `will not be valid unless the person having such claim shall, within a stated time, lodge with the town clerk of the town in which said building is situated a certificate in writing, describing the premises, the amount claimed as a lien thereon, and the date of the commencement of the services or the furnishing of materials. . . .' Tramonte v. Wilens, 89 Conn. 520, 523, 94 A. 978 (1915). We also have repeatedly stated, however, that, although a mechanic's lien is in derogation of the common law, we do not compel a strict construction of its requirements. Wilcox v. Woodruff, 61 Conn. 578, 585, 24 A. 1056 (1891). `We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanic's liens in order to achieve the remedial purposes of the mechanic's lien statutes.' J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 514, 555 A.2d 990 (1989). We recognize that the remedial purpose of mechanic's lien law is `to furnish security for a contractor's labor and materials' and that this beneficent purpose requires `a generous construction.' Seaman v. Climate Control Corp., 181 Conn. 592, 597, 436 A.2d 271 (1980); see J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 514 (generous construction requires only reasonable compliance with statutory provisions).
"`In accordance with this policy, 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. See, e.g., H S Torrington Associates v. Lutz Engineering Co., [ 185 Conn. 549, 555-56, 441 A.2d 171 (1981)] (copy of certificate served on owner by a subcontractor failed to state its intent to file a lien); Morici v. Jarvie, 137 Conn. 97, 102, 75 A.2d 47 (1950) (misstatement of amount due); Pierce, Butler Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934) (subcontractor mislabeled as contractor and agent); Burque v. Naugatuck Lumber Co., 113 Conn. 350, 353, 155 A. 414 (1931) (defect in description); Peck v. Brush, 89 Conn. 554, 556-57, 94 A. 981 (1915) (inclusion of extra land in certificate); Westland v. Goodman, 47 Conn. 83, 86 (1879) (erroneous date of completion of work).' J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 515; see also Halsted Harmount Co. v. Arick, 76 Conn. 382, 387, 56 A. 628 (1904); Nichols v. Culver, 51 Conn. 177, 180 (1883); Marston v. Kenyon, 44 Conn. 349, 356 (1877). As we have reasoned many times, `we do not think a court of equity can be called upon to declare [a] lien utterly void upon the motion of persons who have lost nothing by [the] mistake.' Marston v. Kenyon, supra, 356." First Constitution Bank v. Harbor Village Ltd. Partnership, supra. 230 Conn. 815-816.
The certificate states that the defendant "provided labor and materials for the purpose of improvements and renovation to [the plaintiff's] property" and that the defendant "claims a lien amount, including extras, of one hundred and sixty thousand dollars ($160,000.00). As the court has held in part I, the certificate of lien was under oath. In determining whether a certificate or notice "is sufficient, the court should consider the entire communication." Zullo v. Smith, 179 Conn. 596, 604, 427 A.2d 409 (1980). Applying this principle to the teachings of First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. 807, and in the absence of any showing of prejudice to the plaintiff, the court holds that the requirement of the statute that the lienor state that the amount claimed is justly due is substantially complied with. The court finds persuasive the defendant's argument that the oath supplies the requirement that the certificate state that the amount claimed is "justly due". To hold otherwise would elevate form over substance. Connecticut courts "have often stated that we will not exalt form over substance. State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994); Wilton v. McGovern, 33 Conn. App. 517, 521, 636 A.2d 870, cert. denied, 228 Conn. 928, 640 A.2d 116 (1994); Connecticut National Bank v. Browder, 30 Conn. App. 776, 779, 622 A.2d 588 (1993); Tolland Bank v. Larson, 28 Conn. App. 332, 337, 610 A.2d 720 (1992)." Brown v. Rosen, 36 Conn. App. 206, 210-211, 650 A.2d 568 (1994). Such exaltation might be necessary if the statute prescribed a certain form for the document in question; see e.g., General Statutes §§ 1-36, 1-38, 1-56i, 10a-61, 12-183, 14-65g, 19a-204, 19a-575, 19a-575a, 19a-577, 20-211a, 20-229, 20-325e, 21-67a, 23-53, 25-101, 31-296, 42-135a, 42-227, 45a-624b, 45a-624c, 47-5, 47-71b, 47a-23, 49-3, 49-4, 49-10, 49-35a, 49-64, 50a-5, 50a-57, 52-308, 52-325a, 52-380a; but it does not.
The application to discharge the mechanic's lien is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court