Opinion
No. CV 05 4003079 S
May 16, 2007
MEMORANDUM OF DECISION
before the court is the defendant John Barnini's motion to dismiss the plaintiff Michelle Amsden's action to foreclose on a mechanic's lien. The defendant moves to dismiss on the ground that the court lacks subject matter jurisdiction because the mechanic's lien at issue is no longer valid. In support of his motion, the defendant contends that the plaintiff failed to comply with General Statutes § 49-39, which requires that in order for a mechanic's lien to remain valid, an action to foreclose must be commenced and a lis pendens recorded within one year from the date that the mechanic's lien was recorded. For the reasons discussed below, the plaintiff's commencement of the foreclosure action and her recording of a lis pendens were timely and thus in compliance with § 49-39. Accordingly, the defendant's motion to dismiss is denied.
The relevant procedural facts are as follows. The plaintiff alleges that on Friday, July 23, 2004, she perfected a mechanic's lien by recording it in the land records of the town of Manchester. (Complaint, ¶ 4.) Pursuant to § 49-39, the plaintiff then had until Saturday, July 23, 2005 to commence a foreclosure action and to record a lis pendens in the town of Manchester's land records. On Monday, July 25, 2005, one year and two days after the recording of the mechanic's lien, a lis pendens was recorded in the town of Manchester's land records. (Defendant's Motion to Dismiss, Exhibit A.) On Tuesday, July 26, 2005, one year and three days after the recording of the mechanic's lien, the defendant was served with process. (Defendant's Motion to Dismiss, Exhibit B.)
General Statutes § 49-39 provides in relevant part that "[a] mechanic's lien shall not continue in force . . . unless the party claiming the lien commences an action to foreclose it . . . and records a notice of lis pendens . . . within one year from the date the lien was recorded . . . Each such lien, after the expiration of the one year period . . . without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law."
"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). "In ruling upon whether a complaint survives a motion to dismiss, a 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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). It is well established that, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).
"In Connecticut, the mechanic's lien is a creature of statute and gives a right of action which did not exist at common law . . . It is the 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 . . ." (Citation omitted.) H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 429, 601 A.2d 1040 (1992). "The purpose of the lis pendens in the context of a mechanic's lien is the same as it is in any other situation in which real property is the subject of litigation; namely, it is intended to give constructive notice to persons seeking to purchase or encumber property after the recording of a lien or the commencement of a foreclosure suit." (Internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership, 37 Conn.App. 698, 703, 657 A.2d 1110, cert. denied, 235 Conn. 902, 665 A.2d 901 (1995). This constructive notice requirement, and the time limitation imposed by § 49-39, has been determined to be both a jurisdictional requirement as well as a time limitation on the cause of action. Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974).
In support of the motion to dismiss, the defendant notes that he did not receive service of process until Tuesday, July 26, 2005, more than one-year after the recording of the mechanic's lien. The defendant contends that because the plaintiff's action to foreclose was not commenced within one year from the recording of the mechanic's lien, the mechanic's lien is invalid and the plaintiff's action to foreclose must be dismissed pursuant to § 49-39. The plaintiff argues in opposition to the defendant's motion to dismiss that service of process was timely because she delivered a copy of her complaint to a state marshal for service upon the defendant within one year from the recording of the mechanic's lien. The plaintiff argues that General Statutes § 52-593a provides that delivery of process to a state marshal is sufficient to preserve a right of action where it would otherwise be lost due to a failure to serve process within a statutorily specified period of time, if the marshal completes service within thirty days of the delivery. Therefore, pursuant to § 52-593a, the plaintiff's delivery of process to the state marshal within one year from the recording of the mechanic's lien and the marshal's completion of service upon the defendant within thirty days of the delivery, constituted timely commencement of the plaintiff's action to foreclose on the mechanic's lien.
General Statutes § 52-593a provides in relevant part: "a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery."
The defendant's second argument in support of the motion to dismiss is that the plaintiff did not record a lis pendens within the one year time limit imposed by § 49-39. The defendant contends that because the plaintiff recorded a lis pendens on Monday, July 25, 2005, more than one year after the recording of the mechanic's lien, the mechanic's lien at issue is no longer valid and the plaintiff's action to foreclose on the lien must be dismissed. In opposition to the defendant's motion to dismiss, the plaintiff argues that the court should take into consideration the fact that the terminal date for the plaintiff to record a lis pendens fell on a weekend day, when Manchester's municipal offices were closed. The plaintiff contends that because the municipal office where she was to record a lis pendens was closed on the terminal date to record a lis pendens, requiring her to record the lis pendens prior to that date would have deprived her of the full one-year time period provided by § 49-39. Thus, she maintains, recording the lis pendens on the following Monday, when the office had reopened, is legally sufficient. In support of her argument, the plaintiff relies on a line of cases summarized in Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001).
In Brennan, the Supreme Court allowed a ninety-day notice requirement to be extended two days when the ninetieth day fell on a Saturday, a day on which the municipal office where the plaintiff was to record the notice was closed. Brennan v. Fairfield, supra, 255 Conn. 701-02. To reach this conclusion, the court examined the statutory language and noted that the statute at issue prescribed "at least ninety days to file . . . notice . . . [and thus] notice given on the first day that the town clerk's office was open following the ninetieth day was sufficient to comply with the statute." Id., 698. To further support this statutory construction, the court noted that "[a]t common law, when the terminal day for filing legal papers fell on a holiday or Sunday, the plaintiff was able to make performance on the following day . . . We see no meaningful distinction between, on one hand, municipal offices that routinely are closed on weekends, and, on the other hand, such offices that are required to be closed on legal holidays . . . Filing notice . . . does not involve just one party. The designated town official must be available to receive the notice. When municipal offices are closed on weekends, public officers are freed from the obligation of keeping open their offices or attending to their duties, just as they are freed from these obligations on official holidays . . . To conclude otherwise would mean that if the terminal date for filing notice . . . fell on a Saturday or Sunday, then either the town clerk's office would have to be open on those days in order to receive the notice, or the designated official would have to be otherwise available to receive the notice delivered on the ninetieth day." (Citations omitted; internal quotation marks omitted.) Id., 698-700. The court therefore concluded that it did not "believe that the legislature intended for claimants to have fewer than the prescribed ninety days available to them pursuant [to the statute] simply because the terminal day coincides with a day when the municipal office is closed." Id., 701.
In the present case, the terminal date for the plaintiff to record a lis pendens fell on a Saturday, a day when the municipal office where she was to record a lis pendens was closed. (Plaintiff's Objection to Motion to Dismiss, Exhibit H.) If she were required to file the lis pendens on the preceding Friday, the plaintiff would not have been afforded the full one-year time period for recording a lis pendens, as provided by § 49-39. Thus, in accordance with the Supreme Court's reasoning in Brennan v. Fairfield, supra, 255 Conn. 693, this court concludes that the plaintiff's recording of a lis pendens on the following Monday, when the office had reopened, is timely and in compliance with the lis pendens recording requirement of § 49-39.
For the foregoing reasons, the plaintiff has sufficiently complied with the time limitations set forth in § 49-39. Accordingly, the defendant's motion to dismiss is denied.