Opinion
No. CV 01 0086012
August 31, 2004
MEMORANDUM OF DECISION RE MOTION TO DISCHARGE MECHANIC'S LIEN #143
This is an action to foreclose a mechanic's lien filed by the plaintiff, Steve Dean Excavating, on property owned by the defendant, Zbigniew S. Rozbicki, located in Falls Village, Connecticut. Presently before the court is the defendant's motion to discharge the mechanic's lien, which is brought pursuant to Connecticut General Statutes § 49-35a.
Section 49-35a provides in relevant part: "Whenever one or more mechanics' liens are placed upon any real estate pursuant to Sections 49-33, 49-34, 49-35 and 49-38, the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced."
FACTS
In March of 2001, the plaintiff filed a mechanic's lien in the amount of $12,500.00 for septic installation services at the defendant's property located at 51 Undermountain Road in Falls Village. A lis pendens was also filed. The septic installation began on or about December 12, 2000.
The defendant testified that the residence located at 51 Undermountain Road was one of two residences that he owned in Falls Village in March of 2001. The second residence was located at 97 Undermountain Road.
Both parties files briefs and an evidentiary hearing was held on June 9, June 10, and June 15, 2004.
DISCUSSION
The right to fix a mechanic's lien is statutory. F.B. Mattson Co., Inc. v. Conrad Tarte, 247 Conn. 234, 238, 719 A.2d 1158 (1998): see also Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 550, 429 A.2d 796 (1980). "Because the mechanic's lien is a creature of statue, a lienor must comply with statutory requirements in order to perfect his claim . . . Provisions of mechanic's lien law should be liberally construed so as to reasonably and fairly implement its remedial intent." (Citations omitted.) HS Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). "[Its] interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction." Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn.App. 773, 777, 724 A.2d 541 (1999); Camputaro v. Stuart Hardwood Corp., supra, 180 Conn. 551.
Connecticut 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 services of the notice in section 49-35.
In his motion to discharge the lien, the defendant first claims that the lien is illegal, void and invalid because it was not subscribed and sworn to by the plaintiff in accordance with General Statutes § 49-34(1)(C). In its objection, the plaintiff contends that the mechanic's lien does comply with § 49-34(1)(C). Specifically, the plaintiff claims that the language stating that the "signer(s) of the foregoing certificate made [a] solemn oath that the facts stated therein are true . . .," satisfies the statute.
The Supreme Court explained § 49-34(1)(C) in Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 620 A.2d 118 (1993), holding that "[a] requirement that a document be `sworn to' contemplates the execution of an affidavit that the facts contained in it are true." (Internal quotation marks omitted.) Id., 577, citing J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 513-14, 555 A.2d 990 (1989). "[T]he 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 lien is insufficient." (Internal quotation marks omitted.) Bell Zajicek, Inc. v. Heyward-Robinson Co., CT Page 12993 23 Conn.Sup. 296, 299, 182 A.2d 339 (1962). Thus, "the mechanic's lien statute requires the performance or execution of an oath swearing that the facts contained in the document are true." Red Rooster Construction Co. v. River Associates, Inc., supra, 210 Conn. 577-78.
In J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 514, the court explained the requirements of § 49-34(1)(C) by stating that "[a]n 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." (Citations omitted.) Thus, "a certificate of mechanic's lien that was merely acknowledged, but not sworn to, [is] invalid." Id., 515; see also Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 579 (mechanic's lien held invalid where oral oath was not administered and plaintiff's president did not sign statement swearing to the truth of the facts in the certificate).
In J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 518, the court found the mechanic's lien invalid because it did not contain a written oath in the certificate stating that the facts had been sworn to by the signor. Further, the certificate in J.C. Penney did not contain an attestation clause, but rather it merely acknowledged the signature. Id., 513; see also Jackson v. Fortunato, Superior Court, judicial district of Stamford, Docket No. CV 88 0096695 (April 11, 1996, Tobin, J.). Additionally, in Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 579, the court held the mechanic's lien invalid because the affiant merely signed a certificate that contained the notary's statement that the claimant had appeared and swore to the truth of the facts contained in the certificate. The Red Rooster holding was expressly based upon the following: "(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) § 1-22 requires that some ceremony be performed in making an oath." Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 570; see also Jackson v. Fortunato, supra, Superior Court, Docket No. CV 88 0096695.
Several Superior Court judges have held that where a mechanic's lien contains the claimant's signature followed by a commissioner's attestation clause and there is no evidence indicating that an oath was not taken, the lien complies with the "sworn to" requirement in § 49-34(1)(C). Id.; see Technico-Op v. Alvin Construction Co., Superior Court, judicial district of Fairfield, Docket No. FBT 0321181 (May 22, 1995, Levin, J.); Brass City Concrete v. New Waterbury, Ltd., Superior Court, judicial district of Waterbury, Docket No. 097468 (October 28, 1993, Pellegrino, J.) ( 10 Conn. L. Rptr. 339, 8 C.S.C.R. 1208) (holding that the critical factor in Red Rooster was the notary's testimony that no oath ceremony was performed).
In the present case, Steve Dean, the affiant for the plaintiff, testified that a notary was present when he signed the lien in March of 2001 and that he took an oath. The plaintiff further testified that the notary read out loud the entire contents of the lien, while the plaintiff's right hand was raised and before he swore to its truth. The defendant did not introduce evidence showing that an oath was not administered. In addition, the certificate states that the plaintiff "does hereby certify that . . .," and goes on to state the facts that provide the basis for the lien. Further, there is an attestation clause above the notary's signature. Thus, the court finds that the lien was subscribed and sworn to in accordance with § 49-34(1)(C).
II
Next, the defendant argues that the lien is invalid because he was not provided with notice in accordance with General Statutes § 49-34. The defendant specifically claims that abode service was attempted at 321 Midgeon Avenue in Torrington, which was not his usual place of abode at that time. The plaintiff argues that abode service at 321 Midgeon Avenue was proper because it was the defendant's usual place of residence.
General Statutes § 49-34 provides that a mechanic's lien is not valid unless the owner is served in the same manner as is provided in § 49-35. Section 49-35 provides in relevant part: ". . . 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." (Emphasis added.)
Neither the Supreme Court nor the Appellate Court have defined "usual place of abode." Nationwide Ins. Co. v. Comito, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0270188 (July 25, 2000, Levine, J.) ( 27 Conn. L. Rptr. 606). However, Superior Court decisions have discussed the phrase. For example, in Lemp v. East Granby, Superior Court, judicial district of Hartford, Docket No. CV 99 0589417S (June 6, 2000, Rubinow, J.) ( 27 Conn. L. Rptr. 388), it was stated that a person's usual place of abode is "the place where the person is living at the time of service." (Internal quotation marks omitted.) A usual abode has also been referred to as "the place where [the defendant] would most likely have knowledge of service of process." Smith v. McKeough, Superior Court, judicial district of New London at Norwich, Docket No. 123757 (August 15, 2002, Hurley, J.T.R.). It should be noted that a usual abode need not be a person's domicile. Nationwide Ins. Co. v. Comito, supra, Superior Court, Docket No. CV 990270188; see also Foye v. Foye, 8 Conn.Sup. 293 (1940). Rather, an abode is similar to a residence in that a person can have more than one. Nationwide Ins. Co. v. Comito, supra, Superior Court, Docket No. CV 99 0270188 (holding that abode service can be made at a previous residence if that residence has not been abandoned); see Foye v. Foye, 8 Conn.Sup. 293 (1940); Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 190 A.2d 495 (1963); Collins v. Scholz, 34 Conn.Sup 501, 373 A.2d 200 (1976). Whether service was made at a defendant's usual place of abode is a question of fact for the court to decide based on the evidence. See Plonski v. Halloran, 36 Conn.Sup. 335, 336, 420 A.2d 117 (1980); see also Close, Jensen, Miller P.C. v. Lomangino, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 91 47550 (July 25, 1991, Klaczak, J.), aff'd, 51 Conn.App. 576, 722 A.2d 1225, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
In the present case, the dispositive issue is whether the defendant's property at 321 Midgeon Avenue was his usual place of abode in March of 2001. Factors indicating that 321 Midgeon Avenue, Torrington was defendant's usual place of abode on March 19, 2001 are as follows: The marshal's return states that "on March 19, 2001, [Marshal Pare'] left a true and attested copy of the original Mechanic's Lien at the usual place of abode of the [defendant] at 321 Midgeon Avenue, Torrington." Nonetheless, "[an officer's return is only prima facie evidence of the facts stated therein and may be contradicted by showing the facts to be otherwise . . ." Uyen Phan v. Delgado, 41 Conn.Sup. 367, 370, 576 A.2d 603, 1 Conn. L. Rptr. 139 (1990). Further, the plaintiff testified that the defendant told him he could reach him by phone at 321 Midgeon Avenue. The defendant is listed in the Torrington phone book at 321 Midgeon Avenue, and also has received mail at 321 Midgeon Avenue. Additionally, the plaintiff testified that he reached the defendant by phone at 321 Midegon Avenue on at least 3 occasions.
Despite these facts, though, the weightier and more persuasive evidence would indicate that 321 Midgeon Avenue was not the defendant's usual place of abode. The vast majority of the evidence during this hearing had more to do with defendant's connection to 97 Undermountain Road in Falls Village, as opposed to any significant residential connection to 321 Midgeon Avenue.
Two longstanding "neighbors" of the defendant on Undermountain Road testified as to their observations of defendant at 97 Undermountain Road. Their testimony, taken individually, stands in stark contrast to each other. But when viewed as a whole, their testimony is completely consistent. The court would first note that the evidence is clear that Undermountain Road, Falls Village, Connecticut is a rural and heavily wooded area.
Ms. Lomax, the defendant's next door neighbor at 107 Undermountain Road, testified she rarely saw the defendant at 97 Undermountain Road. She would see him at the property on weekends, but there appeared to be no activity at the home during the week. Ms. Lomax has lived on Undermountain Road for some 20 years.
Mrs. Van Bommel, the defendant's next door neighbor at 89 Undermountain Road testified she saw the defendant regularly at 97 Undermountain Road. Whenever Mrs. Van Bommel needed to reach the defendant she could always do so at 97 Undermountain Road. The defendant and Mrs. Van Bommel assumed the cause of feeding the wildlife in their backyards. Mrs. Van Bommel often heard the defendant swimming in the pond on his residence. She further had occasion to attend parties at the Defendant's residence. Mrs. Van Bommel, similar to Ms. Lomax, has lived on Undermountain Road for over 30 years. Mrs. Van Bommel further testified that there appeared to be no activity at 107 Undermountain Road, the Lomax residence.
What provided clarity for the court to this conflicting neighborhood testimony was the fact that, despite their long-term residence on Undermountain Road, Ms. Lomax and Ms. Van Bommel met each other for the first time in court on the date of this hearing. It would appear to the court that without making a concentrated effort, neighbors on Undermountain Road can live anonymously for decades. Mrs. Van Bommel chose to befriend the defendant. Ms. Lomax chose not to.
Further, the evidence indicated that the defendant was registered to vote in Canaan; held a pistol permit with the Undermountain Road address; had his car registered at Undermountain Road; was listed in the Lakeville/Canaan phonebook and was issued a hunting license with the Undermountain Road address. Other witnesses testified to frequent visit to the defendant at 97 Undermountain Road.
The evidence establishes that 321 Midgeon Avenue was not the defendant's "usual place of abode" in March of 2001.
III CT Page 12997
The defendant's final argument is that the lien is defective because the plaintiff failed to record a valid lis pendens on the land records within a year of perfection of the mechanic's lien. Specifically, the defendant contends that there is an incorrect return date, incorrect date of process and incorrect description of the property. In response, the plaintiff argues that the lis pendens is valid because the proper return date is stated initially on the document and the incorrect date appears later in the body of the document. The plaintiff further argues that any mistakes were in good faith and did not prejudice the defendant and thus they are not fatal.
General Statutes § 52-325(a) provides in pertinent part:
In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards . . . if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of Lis Pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property . . . For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law.
Connecticut courts are "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." First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 816, 646 A.2d 812 (1994), citing Marston v. Kenyon, 44 Conn. 349, 356 (1877); see also Beier v. Wright, Superior Court, judicial district of Hartford, Docket No. CV 98580410 (February 19, 1999, Mulcahy, J.) ( 24 Conn. L. Rptr. 210).
Superior Court judges are in agreement that minor defects in a lis pendens, which do not prejudice the defendant(s), are not fatal. See Beier v. Wright, supra, 24 Conn. L. Rptr. 210 (denying motion to discharge lis pendens because defendant did not demonstrate prejudice); Mahone v. Mahone, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FA 93 302576 (August 22, 1994, Thim, J.) ("This defect is too inconsequential to invalidate the notice of us pendens").
In Concept Homes, LLC v. Newtown, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090830 (November 12, 2003, Bryant, J.) ( 35 Conn. L. Rptr. 752), the defendants claimed that a lis pendens was invalid because it did not state the term, session or the return day. Relying on Manaker v. Manaker, 11 Conn.App. 653, 660-61, 528 A.2d 1170 (1987), the court, Bryant, J., concluded that the defendants overstated the significance of procedural and nonsubstantive defects, holding that because the defendants were provided with notice and were not prejudiced, the purpose of § 52-325(a) was fulfilled.
In the present case, the summons and complaint both included the correct return date of October 16, 2001, as did the caption on the lis pendens. In the body of the lis pendens notice, an incorrect return date of September 18, 2001 is given. However, an appearance, which noted the correct return date, was filed for the defendant on October 29, 2001. Because the defendant has not shown that he was prejudiced by the defects in the lis pendens or that the plaintiff acted in bad faith, such defects do not provide a basis to grant the defendant's motion to discharge the mechanic's lien.
CONCLUSION
For the reasons set forth above, the defendant's motion to discharge the mechanic's lien is granted.
BY THE COURT
Bozzuto, J.