Opinion
No. CV 10 6001507S
August 19, 2010
MEMORANDUM OF DECISION RE MCJ'S AMENDED MOTION FOR SUMMARY JUDGMENT (#109); BERKSHIRE BANK'S MOTION TO DISMISS (#110)
The issue presented is whether the court should grant MCJ's motion for summary judgment (#109) and/or grant Berkshire Bank's motion to dismiss (#110). For the following reasons, the court denies both Berkshire Bank's motion to dismiss and MCJ's motion for summary judgment.
FACTS
In the present action, which was filed on January 26, 2010, the plaintiff, S.M. Berger, Inc., doing business as Modern Plumbing Supply, seeks to foreclose a mechanic's lien on premises owned by MCJ, LLC (MCJ), one of the defendants. In its complaint, the plaintiff alleges the following facts. On June 16, 2008, the plaintiff agreed to provide plumbing services and supplies to MCJ's premises. The plaintiff began furnishing supplies on the same day and ceased furnishing supplies on October 22, 2008. MCJ owes the plaintiff a balance of $94,882.29 for those supplies, plus interest and attorneys fees. On January 21, 2009, the plaintiff recorded a certificate of lien on the subject premises in accordance with General Statutes § 49-34. The plaintiff served MCJ with a copy of that lien on January 22, 2009. The plaintiff also named Northeast Builders Supply Home Centers, LLC, Pupper Septic, Inc., doing business as Mr. Septic, and Berkshire Bank as defendants. Berkshire Bank has an interest in MCJ's property by virtue of two mortgages securing two loans on the premises.
On April 6, 2010, MCJ filed an amended motion for summary judgment (#109). Its supporting memorandum of law was filed with its original motion (#108) on March 31, 2010. MCJ argues that its motion should be granted because the plaintiff's certificate was filed beyond the applicable statute of limitations in General Statutes § 49-34. On April 6, 2010, Berkshire Bank filed a motion to dismiss the plaintiff's complaint (#110) on the ground that the court lacks subject matter jurisdiction over the complaint because the certificate of lien was not timely filed under § 49-34. The plaintiff filed an objection to MCJ's motion for summary judgment on April 8, 2010, to which MCJ filed a reply on May 21, 2010. The plaintiff also filed an objection to Berkshire Bank's motion to dismiss on May 21, 2010. Both matters were heard at the short calendar on June 28, 2010.
DISCUSSION
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 . . ." (Emphasis added.) "Although the mechanic's lien statute creates a statutory right in derogation of the common law . . . its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials . . . Our interpretation, 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.) Rollar Construction Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn.App. 125, 129, 891 A.2d 133 (2006).
MCJ and Berkshire Bank raise the same issue, the validity of the plaintiff's mechanic's lien under § 49-34(1), but on different motions. The court first addresses Berkshire Bank's motion to dismiss alleging lack of subject matter jurisdiction.
I BERKSHIRE BANK'S MOTION TO DISMISS
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
In Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 871 A.2d 1057, cert. granted, 274 Conn. 909, 876 A.2d 1201 (2005), appeal withdrawn (2006), the Appellate Court held that a trial court improperly dismissed the foreclosure of a mechanic's lien after concluding that the lien was defective. The court reasoned: "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 . . . No facts may be proved under either a general or special denial except such as show that the plaintiff's 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 . . . After filing an answer and special defense, the defendants may move for summary judgment." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 781. Following the Appellate Court's reasoning, several trial courts have also concluded that it is inappropriate to challenge the validity of a mechanic's lien on a motion to dismiss. See McGhee-Fichtner v. Kusek, Superior Court, judicial district of New London, Docket No. CV 09 5010446 (November 12, 2009, Martin, J.); McDonough v. Collender, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001213 (August 8, 2007, Jennings, J.) ( 44 Conn. L. Rptr. 209) (failure to comply with § 49-34 is not a valid ground for a motion to dismiss because it does not deprive the court of subject matter jurisdiction).
Although the plaintiff in the present matter does not argue that Berkshire Bank's motion to dismiss is improper, the court concludes that under the applicable case law, the motion to dismiss must be denied.
II MCJ'S MOTION FOR SUMMARY JUDGMENT
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[T]he moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
As previously noted, in Louis Gherlone Excavating, Inc. v. McLean Construction Co., supra, 88 Conn.App. 775, the Appellate Court noted that the correct way to challenge the validity of a lien is by raising it in a special defense and then filing a subsequent motion for summary judgment, not a motion to dismiss. "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 . . . No facts may be proved under either a general or special denial except such as show that the plaintiff's 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 . . . After filing an answer and special defense, the defendants may move for summary judgment." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 781.
Despite the fact that the question of the lien's validity was not properly before the court in Louis Gherlone Excavating, the Appellate Court went on to note: "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 . . . In all likelihood, if the matter were remanded, the defendants would answer the complaint and allege a special defense that the lien is invalid. The defendants thereafter would file motions for summary judgment . . . None of the facts at issue would change on remand. On a second appeal, we again would be faced with the substantive question regarding the validity of the mechanic's lien, which is a question of law. For reasons of judicial economy, therefore, we will resolve the legal question concerning the validity of the mechanic's lien." (Citations omitted.) Id., 781-82.
Although the plaintiff fails to raise this issue, the court first notes that MCJ's motion for summary judgment is not properly before the court. MCJ did not file an answer and special defense in which it challenges the validity of the lien before moving for summary judgment. Despite this procedural defect, the interests of judicial economy are also at work in the present matter. If the court were to deny MCJ's motion for summary judgment on procedural grounds, MCJ could potentially file a renewed motion for summary judgment after filing an answer and special defenses. None of the facts would change, and the same legal issue would be before the court. For this reason, and because the plaintiff fails to address this procedural deficiency, the court proceeds to the parties' substantive arguments.
In its motion for summary judgment, MCJ argues the plaintiff's lien is invalid because it was filed beyond the applicable statute of limitations in § 49-34. Specifically, MCJ argues that the plaintiff ceased furnishing materials on October 22, 2008, but that it did not record the lien until January 21, 2009. MCJ cites two Superior Court decisions in support of its position that the lien was untimely and that the court should grant summary judgment. MCJ also submits a calendar in support of its motion.
In its objection, the plaintiff does not dispute that it ceased furnishing materials on October 22, 2008, and that it filed the lien on January 21, 2009. Rather, the plaintiff argues that the January 21, 2009 filing was timely because Connecticut courts have "allowed parties to file legal papers beyond the mandated time period in certain circumstances." The plaintiff cites Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001), Janazzo v. Janazzo, Superior Court, judicial district of New Britain, Docket No. CV 05 4003396 (September 30, 2005, Robinson, J.) ( 40 Conn. L. Rptr. 61), and Piazza v. Hadley Sutherland, LLC, Superior Court, judicial district of Litchfield, Docket No. CV 00 83296 (January 17, 2001, Cremins, J.) ( 29 Conn. L. Rptr. 125) in support of this conclusion. The plaintiff also submits a certified copy of the mechanic's lien and an affidavit of Joanne C. Tiedmann, town clerk of Warren, in support of its objection. In her affidavit, Tiedmann states that the Warren town clerk's office was closed on Saturday, January 17, 2009, and Sunday, January 18, 2009. She also states that the office was closed on Monday, January 19, 2009, due to the Martin Luther King, Jr. state holiday, and that the office was also closed on Tuesday, January 20, 2009, because the office is not open on Tuesdays.
In a reply brief, MCJ argues that the present matter is distinguishable from Brennan because the ninetieth day in the present matter did not fall on a weekend, as the ninetieth day fell in Brennan, or on a holiday. Rather, MCJ argues, the ninetieth day fell on Tuesday, January 20, 2009, and Tuesdays are a day when the Warren town clerk's office is normally closed. "Had the plaintiff done its due diligence," MCJ argues, "the plaintiff should have known and [made] the appropriate arrangements to file the mechanic's lien on time." Moreover, MCJ argues that § 49-34 is strictly construed, unlike the statute at issue in Brennan, which is liberally construed.
In Brennan v. Fairfield, supra, 255 Conn. 693, the Connecticut Supreme Court discussed the timeliness of a claim brought under General Statutes § 13a-149, commonly referred to as the highway defect statute. Section 13a-149 provides in relevant part that an action shall not be maintained against a town "unless written notice of such injury . . . shall, within ninety days thereafter be given to a selectman or to the clerk of such town . . ." The ninetieth day to file the plaintiff's claim fell on a weekend, and thus, the plaintiff was unable to file her claim until the following Monday. Id., 697. The court concluded "that the statute prescribes that the plaintiff must be afforded at least ninety days to file her notice pursuant to § 13a-149, and that, when the town clerk's office was closed on the ninetieth day, 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.
The court reasoned: "Filing notice under § 13a-149 . . . 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 pursuant to § 13a-149 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. We do not think that the legislature intended these consequences in order for a claimant to satisfy the notice filing requirements of § 13a-149."
"We note, moreover, that permitting filings past certain deadlines is an accepted practice in our courts. For example, Practice Book § 7-17 provides in relevant part: If the last day for filing any matter in the clerk's office falls on a day on which such office is not open . . . then the last day for filing shall be the next business day upon which such office is open." (Citation omitted; internal quotation marks omitted.) Id., 700.
In Janazzo v. Janazzo, supra, Superior Court, Docket No. CV 05 4003396 ( 40 Conn. L. Rptr. 61) the court applied the Brennan reasoning to a probate appeal filed under General Statutes § 45a-186(a), which provides thirty days for the filing of an appeal. The thirtieth day fell on a weekend, when the probate court was closed. Id., 62. The Superior Court has also considered whether a mechanic's lien was timely filed when that lien was filed on the ninety-third day. See Piazza v. Hadley Sutherland, LLC, supra, Superior Court, Docket No. CV 00 83296 ( 29 Conn. L. Rptr. 125). Ultimately, the court concluded that the mechanic's lien was untimely in Piazza. Id., 126. The distinction in Piazza, however, was that the ninety day fell on a Saturday when the town clerk's office was open. Id. Thus, it was possible for the plaintiff to timely file the mechanic's lien on the ninetieth day.
In the present matter, there are no material facts in dispute as to the question before the court. MCJ does not attempt to dispute the fact that the plaintiff ceased furnishing materials on October 22, 2008. Thus, the ninetieth day fell on Tuesday, January 20, 2009, when the Warren town clerk's office was closed. The plaintiff filed its lien on the following day, Wednesday, January 21, 2009. Although MCJ attempts to distinguish situations where the ninetieth day falls on a weekend, when the town clerk's office is closed, from the present matter, where the town clerk's office was closed on a Tuesday, the court finds this distinction irrelevant under Brennan. Although the Brennan court discussed situations where the ninetieth day falls on a weekend or holiday, its holding is not as narrow as MCJ suggests. Rather, the Brennan court held that "when the town clerk's office was closed on the ninetieth day, 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." (Emphasis added.) Brennan v. Fairfield, supra, 225 Conn. 693, 698. While the court recognizes that Brennan dealt with a separate statute, its reasoning is persuasive here. Moreover, as in Brennan, Practice Book § 7-17 also supports the conclusion when the town clerk's office is closed on the ninetieth day, and a lien is filed on the following day, it is sufficient to meet the time requirement under the applicable statute.
For all of these reasons, the court concludes that MCJ has not established its entitlement to summary judgment as a matter of law, and its motion for summary judgment is denied.