Opinion
No. CV 02-0080291
May 9, 2003
MEMORANDUM OF DECISION
This is an application for discharge or reduction of a mechanic's lien on the Plaintiffs' property in Tolland brought pursuant to General Statutes § 49-35a.
A hearing on the application was held on January 21, 2003 at which time the court received a number of exhibits and heard the testimony of the Defendant and the Plaintiff, Carl Sallstrom, and Justin Kaldy, an employee of DeSiato, the excavating company that completed the work on the Plaintiffs' property. At the hearing, the Plaintiffs submitted a memorandum in support of their application. The Defendant submitted a memorandum in opposition on January 28, 2003.
At the hearing on the application, the parties stipulated that someone from the office of counsel for the Defendant mailed out the copy of the lien and whoever that was only mailed one copy to Mr. and Mrs. Sallstrom. In addition, the parties stipulated that the person did not write on the document at all. The evidence also established the following facts. The Defendant agreed with the Plaintiff Carl Sallstrom to perform certain excavating services for a new home that the Plaintiffs were constructing in Tolland owned by Mr. and Mrs. Sallstrom. The Sallstroms did not reside in Tolland but lived in East Hartford at that time. The Defendant began the work on July 16, 2002. The parties had a dispute after the work was about two-thirds completed and the Defendant left the job on August 31, 2002. On November 7, 2002 the Defendant filed a mechanic's lien on the Plaintiffs' property in Tolland. One copy of the lien was sent by certified mail to Carl Linda Sallstrom, 19 Howard Street, East Hartford, CT 06108. Linda Sallstrom signed the return receipt on November 25, 2002.
General Statutes § 49-34 provides that: "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."
General Statutes § 49-35 provides: ". . . The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, state marshal or other proper officer, by leaving with such owner or original contractor or at such owner's or the original contractor's usual place of abode a true and attested copy thereof. If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides. If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication in accordance with the provisions of section 1-2. When there are two or more owners, or two or more original contractors, the notice shall be so served on each owner and on each original contractor. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice within said period of ninety days."
The Plaintiffs claim that the Defendant's lien is invalid because: 1) it was not served by an indifferent person, state marshal or other proper officer; 2) the copy of the lien mailed to the Plaintiffs was not attested as a true copy; and 3) the lien was not served on each owner. The Defendant claims that the lien is valid because: 1) an attorney is a "proper officer"; 2) the copy of the lien did not need to be attested to because it was not served by a marshal and the copy was a true copy as witnessed and filed by the Assistant Town Clerk; and 3) by addressing the notice to both owners jointly as husband and wife residing together service was proper.
"The right to fix a lien for materials furnished or services rendered on buildings and land is created by statute, and the acts required by the statute must be done to entitle a party to the benefit of its provisions. White v. Washington School District, 42 Conn. 541, 545; McGann v. Sloan, 74 Conn. 726, 727, 52 A. 405; Swift Upson Lumber Co. v. W.L. Hatch Co., 115 Conn. 494, 497, 162 A. 19; Kelly v. Alling, 84 Conn. 487, 492, 80 A. 782." The Lampson Lumber Company, Inc. v. Rosadino, 141 Conn. 193, 196 (1954). "Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim. E.g., City Lumber Co. of Bridgeport, Inc. v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775 (1945); Swift Upson Lumber Co. v. W.L. Hatch Co., 115 Conn. 494, 498, 162 A. 19 (1932); White v. Washington School District, 42 Conn. 541, 545 (1875)." HS Torrington Assoc. v. Lutz Engineering Co., 185 Conn. 549, 553 (1981).
General Statutes § 49-34 provides that service of the lien must be made in the same manner as provided in General Statutes § 49-35. That statute provides that if the owner of the property on which the lien is claimed does not reside in the same town as the location of the property, the certificate of lien may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the certificate by registered or certified mail to the owner at the place where such owner resides. It is undisputed here that the copy of the lien was mailed from the law offices of the Defendant's counsel. There is no claim that the person who mailed it was a state marshal or other indifferent person. Obviously a member or employee of the Defendant's counsel is not an "indifferent person." Lampson Lumber Co. v. Rosadino, 141 Conn. 193, 196 (1954) (an "indifferent person" using Webster's definition of "indifferent" is one "`[h]aving a neutral or unbiased disposition; . . . [n]ot inclined or affected to one side, party, or cause more than to another; unprejudiced,' Webster's New International Dictionary (2d ed.) "). The Defendant claims, however, that his attorney is a "proper officer" within the meaning of General Statutes § 49-35. The Defendant cites the decision in Connor v. Statewide Grievance Committee, 260 Conn. 435 (2002), in support of his position. However, there the issue was not whether an attorney was a "proper officer" within the meaning of either General Statutes § 52-50 or § 49-35 but simply whether an appeal from a decision of the Grievance Committee was required to be served in the same manner as civil process. The court knows of no statute, nor has the Defendant cited the court to any, which authorizes an attorney to serve any type of process or which in some other manner designates an attorney a "proper officer" within the meaning of the statutes. Thus the lien was not served by a "proper officer" as required by the statute.
The Plaintiffs also argue that the copy of the lien mailed to the Plaintiffs was not attested as a true copy. The parties stipulated that no notation was made on the copy of the lien sent to the Plaintiffs. General Statutes § 49-34 requires that "a true and attested copy" be served on the owners. It has been held that the serving of unattested copies of a mechanic's lien renders the lien ineffective. Swift Upson Lumber Co. v. Hatch Co., 115 Conn. 494 (1932). Here the copy of the certificate of lien sent to the Plaintiffs does not contain any language or notation indicating that it was a true and attested copy or any original signature attesting to its genuineness. The Defendant contends that the copy of the lien did not need to be attested to because it was not served by a marshal and the copy was a true copy as witnessed and filed by the Assistant Town Clerk. The Defendant's claims are without merit. The statute requires that the person claiming the lien "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." (Emphasis added.) This is required whether the lien is served by a marshal, an indifferent person or any other proper officer. In addition, the copy of the lien sent to the Plaintiffs does not contain an original signature by the Assistant Town Clerk and, in any event, her signature only notes the time and date of receipt for filing, it does not certify that the document is a true and attested copy.
Lastly, the Plaintiffs claim the notice was invalid because it was not served on each owner. In order for a lien to be valid the lienor must serve a copy of the lien on the owner. Papa v. Greenwich Green, Inc., 177 Conn. 295, 301-02 (1979). The lien notes that the record owners of the subject property are Carl Sallstrom and Linda Sallstrom. General Statutes § 49-35 requires that "[w]hen there are two or more owners . . . the notice shall be so served on each owner." Here it is undisputed that only one notice was served by certified mail addressed to "Carl Linda Sallstrom" and that only Linda Sallstrom signed the return receipt. The statute requires that the notice be given to each owner separately. There is no provision for notice to owners as a group. The failure to give notice to each owner renders the lien invalid. Kababik v. Hydraulic Repair Company, Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 92-039756 (September 3, 1992) ( 7 Conn.L.Rptr. 280).
The Defendant failed to comply with the provisions of General Statutes §§ 49-34 and 49-35, therefore the Plaintiffs' application is granted and the lien is discharged.
Jane S. Scholl, J.
CT Page 6266-a