Opinion
No. CV 04 0198833
August 23, 2004
MEMORANDUM AND ORDER ON MOTION TO DISMISS
Background
This is an action to foreclose a mechanics lien upon the defendants' home in Greenwich, brought by a contractor who allegedly performed services and supplied materials in connection with a renovation to the home. The defendants have moved to dismiss the complaint in that (1) the mechanic's lien which forms the basis of this foreclosure action was not recorded within ninety days of the last date on which materials were furnished or services were provided, or (2) the mechanic's lien was filed and sworn to by a business entity which was not a party to the underlying oral agreement and which did not provide services or furnish materials to the property.
Discussion
If the defendant's claims are correct, they implicate this court's jurisdiction over the subject matter of this lawsuit. Failure to comply with the provisions of Section 49-34 of the Connecticut General Statutes invalidates a mechanic's lien and deprives the court of jurisdiction over the mechanic's lien action. Diamond National Corporation v. Dwelle, 164 Conn. 540, 547 (1973); Santa Fuel, Inc. v. Vargo, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV00-0374050 (May 30, 2001, Brennan, J.) (29 Conn. L. Rptr 547); Monahan v. Godfrend, 1993 WL 128535 (Conn.Super., Rush, J.) ( 8 Conn. L. Rptr. 795). Once raised, all issues of subject matter jurisdiction must be acted upon by the court and all other actions in the case must come to a halt until such determination is made. Gurliacci v. Mayer, 218 Conn. 531, 545 (1991).
In this case the moving parties, the defendants, are not relying strictly on the pleadings, but have raised issues outside the pleadings by submission of an affidavit of the defendant Michael A. Commoroto which states, inter alia, that the last date the plaintiff worked on the premises was September 15, 2002 (and not October 15, 2002 as alleged in the complaint and as recited in the recorded Certificate of Mechanics Lien) and that the party named as the claimant in the sworn Certificate of Mechanic's Lien — "Vito M. Fosella Sons Builders" — is not the party with whom the defendants orally contracted to perform renovations at their home and not the party who actually performed services and supplied materials to their home. The plaintiff has submitted a counter-affidavit claiming that his last day on the job was October 15, 2002 and that he supplied materials "through his suppliers" even after that date. Although the plaintiff's affidavit makes no mention of "Vito M. Fosella Sons Builders" the plaintiff's memorandum in opposition to motion to dismiss claims that the foregoing is a "d/b/a" or trade name which is "one and the same" with Vito M. Fosella.
When this motion to dismiss came up at short calendar, counsel for the plaintiff and the defendants asked this court to decide this motion to dismiss "on the papers," i.e. the pleadings, the affidavits of the parties, and the memoranda of law. The court's own research, however, discloses that it would be reversible error for the court to decide this motion without first holding an evidentiary hearing on the contested issues of jurisdictional facts, including the last date on which services were performed or materials supplied to the premises and the identity of the parties to the oral contract, the party who performed services or supplied materials to the premises, or the identity and nature of the party named as the claimant on the sworn Certificate of Mechanic's Lien. Garden Mutual Benefit Association v. Levy, 37 Conn.Sup. 790 (Appellate Session of the Superior Court, 1981). In Garden Mutual, the jurisdictional issue was whether or not the defendant had been served with process at his usual place of abode. The defendant submitted an affidavit claiming that the address at West Hartford where process was left was not his usual place of abode. The plaintiff had submitted an affidavit to the contrary. The trial court (Borden, J.), after reviewing the affidavits, granted the motion to dismiss without holding an evidentiary hearing. The only issue on appeal was whether or not it was proper for the Superior Court to decide the motion to dismiss without first holding an evidentiary hearing. Comparing the practice to be followed in deciding motions to dismiss under Section 143 of the Practice Book of 1973 (presently Section 10-30 of the Practice Book revision of 1998) with the prior practice under pleas in abatement (replaced by motions to dismiss in the 1978 revision of the Practice Book), the Appellate Session of the Superior Court reversed, holding that court must always conduct an evidentiary hearing when the resolution of jurisdictional issues revolves around contested issues of fact: ". . . we find that the trial court erred in failing to conduct an evidentiary hearing on this disputed fact prior to dismissing the action." 37 Conn.Sup. at 793.
The holding of Garden Mutual has been consistently applied and has become ingrained in our jurisprudence:
See e.g. Shay v. Rossi, 253 Conn. 134, 139, 749 A.2d 1147 (2000); Koslosky v. First National Bank, 2000 Ct.Sup. 3934 (2000); Evans v. Estate of Simiartis, 1999 Ct.Sup. 7981 (1999); Westbrook Technologies, Inc. v. City Blueprinting Co., 1999 Ct.Sup. 4255 (1999); Charles Town Associates, Limited Partnership v. Danlente, 1996 Ct.Sup. 4101 (1996); and A. Rotundo Sons v. Skanko Sharon-Foxboro, 1995 Conn.Sup. 2403 (1995).
When a motion to dismiss does not seek to introduce facts outside the record, it admits all well-pleaded facts, the complaint being construed most favorably to the plaintiff. Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45, 49 (1963); . . . A plaintiff seeking to go beyond the facts in the complaint must file an affidavit with the memorandum of law. Boyd v. Payne, 16 Conn. Law Trib. No. 18, p. 29 (1990). While the rule permits the filing of affidavits, if there is a disputed issue of fact, the matter cannot be decided solely on affidavits. Carron v. Taylor, 1 Conn.Sup. 30 (1986).
Commentary to Practice Book Section 10-31, Connecticut Practice, Volume 1, 4th Ed. Horton and Knox, p. 358.
There is also precedent for a court to decline to decide a motion to dismiss involving contested jurisdictional facts, even after initially accepting the case on the basis of affidavits. Clark v. Club Med, Inc., 1990 Ct. Sup. 1225, Docket No. 51-12-65, Superior Court for the Judicial District of New London at New London. (Axelrod, J.)
ORDER
Accordingly, it. is ordered that an evidentiary hearing shall be held in a timely manner before this court on the defendant's motion to dismiss.
BY THE COURT:
Alfred J. Jennings, Jr., Judge.