Louis Gherlone Excavating, Inc. v. McLean Construction Co.
Louis Gherlone Excavating, Inc. v. McLean Construction Co.
Opinion of the Court
Opinion
This appeal concerns the judgment of dismissal rendered in an action to foreclose a mechanic’s lien. On appeal, the plaintiff, Louis Gherlone Excavating, Inc., claims that the trial court improperly dismissed the action by concluding that the mechanic’s lien was defective on its face because there was no verification of the truth of the statements contained in it, as required by General Statutes § 49-34.
The material facts and procedural history do not appear to be in dispute. In January, 2004, the plaintiff commenced this action against several defendants
I
On appeal, the plaintiff raised three claims, all of which concern the validity of the mechanic’s lien with respect to § 49-34 and Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 577. The defendants’ counterstatements of the issues do not raise other issues. In other words, none of the parties questioned the propriety of the court’s having dismissed the action, rather than exercising its jurisdiction over the matter to rale on the merits of the plaintiffs claim. In support of their motions to dismiss the plaintiffs foreclosure action, the defendants cited one sentence from H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 601 A.2d 1040 (1992), but without noting the distinguishing fact of that case. H. G. Bass Associates, Inc., does not apply to this action because that case is controlled by General Statutes § 49-39.
“[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court,
“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). “Any mechanic’s hen may be foreclosed in the same manner as a mortgage.” General Statutes § 49-33 (i). In filing their
The defendants were not without a means to raise the validity of the mechanic’s lien prior to trial. “Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never been a valid lien. . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. . . . A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both.” (Emphasis added; internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. ...” Practice Book § 10-50. After filing an answer and special defense, the defendants may move for summary judgment. See Practice Book § 17-44.
Although the court improperly dismissed the action because the court had subject matter jurisdiction, we decline to remand the case for further proceedings for reasons of judicial economy. See New England Pipe
II
The substance of the plaintiffs claim is that the court improperly construed § 49-34 with respect to the mechanic’s lien concerning the premises and concluded that Gherlone had to state in writing on the mechanic’s lien certificate that the facts recited therein were true. The plaintiff also argues that § 49-34 is to be construed liberally. The issue presents a question of statutory construction. We, however, do not begin on a clean page, as a fair amount of ink has been used to construe, repeatedly, the very language at issue here. See First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 646 A.2d 812 (1994); Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 563; J. C. Penney Properties, Inc. v. Peter M. Santella
In J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 512, the defendant argued, as the plaintiff does here, that § 49-34 (1) (C) “requires only a signing under oath, and that the oath need not be set forth in the document itself.” Our Supreme Court did not agree. “ ‘An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. ... 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. . . .’ Bell & Zajicek, Inc. v. Heyward-Robinson Co., [supra, 23 Conn. Sup. 298].” (Citations omitted.) J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 514.
“The word ‘swear’ means in law to take oath; to give evidence or state on oath or legal equivalent, as on affirmation — as, to ‘swear’ to a fact, against a party.” Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, 23 Conn. Sup. 298. Our General Statutes distinguish between the words “swear” and “acknowledgment.” See id. Although our Supreme Court has long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanic’s liens to achieve the remedial purpose of § 49-34, it has recognized that such a policy has limitations. See J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 514. “[T]he principles that guide our interpretation of mechanic’s lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law ... its remedial purpose to furnish security for a contractor’s labor and materials requires
“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.” Id., 515; see also First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. 816 (listing examples of liberal validation of liens despite claimed errors). The defendant, however, has cited no Connecticut case in which a court has validated a certificate of mechanic’s hen despite the clear absence of a necessary statutory element of the certificate, nor have we found such a case.
“While § 49-34 is to be construed so as to reasonably and fairly carry out its remedial intent . . . the plain meaning of the language of the statute cannot be ignored. . . . The term ‘sworn to’ implies that the subscriber shall have declared upon oath the truth of the statement to which his name is subscribed, and a certificate which merely recites that the claimant ‘acknowledges’ execution of the hen is insufficient.” (Citations omitted.) Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, 23 Conn. Sup. 298-99. “[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 hen statute requires the performance or execution of an oath swearing that the facts contained in the document are true.” (Citations omitted; internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 577-78.
The form of the judgment is improper, the judgment of dismissal is reversed and the case is remanded with direction to render judgment in favor of the defendants.
In this opinion BISHOP, J., concurred.
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 .. . lodges ... a certificate in writing ... (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 . . . .” (Emphasis added.)
See New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 338, 857 A.2d 348 (2004); see also Peters v. Dept. of Social Services, 273 Conn. 434, 438, 870 A.2d 448 (2005).
The defendants are McLean Construction Company, Inc., JP Morgan Chase Bank, N.A. (Chase), O & G Industries, Inc., North Main Bridge, LLC (North Main Bridge), Walgreen Eastern Company, Inc., and the Beard Concrete Company. Only Chase and North Main Bridge submitted briefs on appeal.
The mechanic’s lien provides in part: “This is to certify that LOUIS GHERLONE EXCAVATING, INC. ... in accordance with a certain contract between LOUIS GHERLONE EXCAVATING, INC. and McLean Construction Co., Inc. . . . has a lien under the statutes in such cases made and provided on the following described premises and to the buildings and structures standing thereon, in the amount of ONE HUNDRED SEVENTY FOUR THOUSAND THIRTY SEVEN AND 05/100 ($174,037.05) DOLLARS, as nearly as the same can be ascertained.
“The Lien is for the services rendered and the materials furnished for the construction on said property and the buildings thereon commenced the 24th day of October, 2002 and ending on the 7th day of May, 2003.
“This certification is made and filed ninety (90) days from the time of ceasing to render services and furnish materials as aforesaid.
“LOUIS GHERLONE EXCAVATING, INC.
“BY:
“ITS CREDIT MANAGER DULY AUTHORIZED
“Subscribed and sworn to before me the day
and year above written.
“ALFRED J. ZULLO, Notary”
Gherlone attested: “I, LOUIS GHERLONE, being duly sworn, depose and say that:
“1.1 am over the age of eighteen (18) years and understand the obligations of an oath.
“2. I am the principal shareholder, President and Credit Manager of the Plaintiff, Louis Gherlone Excavating, Inc. in this matter.
“3.1 am thoroughly familiar with the facts and circumstances contained in the complaint in [this] matter.
“4. At my request a Mechanic’s Lien was prepared and served on the Defendants in [this] matter.
“5. That on July 8, 2003 I appeared at my attorney’s office to execute the Mechanic’s Lien. I read the hen before executing it, signed the hen and then was asked to raise my right hand by my attorney Alfred J. Zuho, who is also a notary pubhc.
“6. That after I raised my right hand I was asked to swear under oath that I read the contents of the Mechanic’s Lien and that statements contained in the hen were true and accurate to the best of my knowledge so help me God, to which I answered ‘yes’.
“7. My attorney then executed the document and stamped it with his seal in my presence.
“8. That I make this affidavit in support of the Objection to the Motion to Dismiss filed this same date in the above matter.”
“In Connecticut, a mechanic’s lien is a creature of statute and establishes a right of action where none existed at common law. . . . It is a general rule that where a statute creates a right of action that did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone. . . . [B]ecause General Statutes § 49-39 sets the time within which the action must be commenced, it conforms with the general rule and is thus a limitation on the right.” (Citations omitted.) H. G. Bass Associates, Inc. v. Ethan Allen, Inc., supra, 26 Conn. App. 429.
The leading cases concerning the validity of a mechanic’s lien that was not verified were not decided pursuant to a motion to dismiss. See Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 563 (decision after trial to court); J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 512, 555 A.2d 990 (1989) (application to discharge mechanic’s lien).
Dissenting Opinion
dissenting. I respectfully dissent from the conclusion reached by the majority in part II. The majority holds that the requirement of General Statutes § 49-34 that a mechanic’s lien be “subscribed and sworn to by the claimant” is not met by the following certification:
“IN WITNESS WHEREOF, I set my hand and seal this 8th day of July, 2003.
“LOUIS GHERLONE EXCAVATING, INC.
“BY:
“ITS CREDIT MANAGER DULY AUTHORIZED
“Subscribed and sworn to before me the day and year above written.
“ALFRED J. ZULLO, Notary”
In reaching this conclusion, the majority relies on J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989), and Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 620 A.2d 118 (1993), which it reads as requiring a statement on the face of the lien certificate to the effect that the facts contained therein are true.
Our Supreme Court in J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 511, held that
The certification on the lien in the present case contains an affirmation by a notary that the lien was “[subscribed and sworn” before him by the president of the claimant. This affirmation makes apparent on the face of the lien certificate, absent a showing to the contrary, that the claimant’s agent made an oath. “An oath . . . is a solemn and formal declaration that the contents of a declaration, written or oral, are true . . . .” (Internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 578. The affirmation by the notary that an oath was taken, therefore, informs the reader that the claimant’s agent performed an oath, swearing that the contents of the lien document were true. Thus, to require that the claimant state in the hen certificate that its agent took an
To invalidate the certificate here exalts form over substance.
I would reverse the judgment of the trial court.
The defendant North Main Bridge, LLC, also alleges that the lien certificate is invalid because it fails to state that the amount claimed is “justly due.” North Main Bridge, LLC, did not brief this claim; however, I address it briefly. General Statutes § 49-34 requires that a lien certificate state “that the amount claimed is justly due, as nearly as the same can be ascertained . . . .” The claimant here avers in the lien certificate that it has a lien “in the amount of ONE HUNDRED SEVENTY FOUR THOUSAND THIRTY SEVEN AND 05/100 ($174,037.05) DOLLARS, as nearly as the same can be ascertained.”
“Provisions of mechanics’ lien law should be liberally construed so as to reasonably and fairly implement its remedial intent. . . . Generosity of spirit does not, however, permit departure from reasonable compliance with specific provisions of the statute.” (Citation omitted; internal quotation marks omitted.) J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 514. Reasonable compliance is “measured by whether the lienor’s mistake was made in good faith and by whether prejudice resulted from the mistake.” First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 818, 646 A.2d 812 (1994). The claimant stated in the lien certificate the amount it claims is due on the lien. There is no evidence to suggest that the omission of “justly due” was made in bad faith. Presumably, the purpose of the statutory requirement is to inform the party subject to the lien the amount sought by the claimant, an objective that was met here. Furthermore, the fact that the claimant’s agent swore to the contents of the lien certificate implies that the amount sought was proper.
Reference
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- Louis Gherlone Excavating, Inc. v. McLean Construction Company, Inc., Et Al.
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