Opinion
No. CV 04-4002160
February 4, 2008
MEMORANDUM OF DECISION
In this action to foreclose a mechanic's lien, brought on August 24, 2004, plaintiff moved on January 4, 2008, pursuant to Conn. Gen. Stat. § 52-109, to substitute as party plaintiff the entity that actually did the work, and defendant moved to dismiss on the grounds that the plaintiff failed to comply with Conn. Gen. Stat. § 49-39, requiring that the party claiming the lien commence an action to foreclose it within one year from the date the lien was recorded.
The facts are as follows:
In 2004, the defendant Daniel J. Falotico contracted with Patrick V. Snow for one of Snow's companies to frame defendant's apartment units at 762, 64, 66, 68, and 70 Park Street in Hartford. After ceasing the work, Premier Development, Inc. (hereinafter "Premier Development") filed a mechanic's lien on the Hartford land records on March 26, 2004. By a summons and complaint dated August 16, 2004, plaintiff Premier Building Development, Inc. (hereinafter "Premier Building") brought this foreclosure action to foreclose the mechanic's lien against the defendant. On that day Premier Building also filed a lis pendens relating to this action.
On January 4, 2008, almost four years after starting this action, plaintiff Premier Building moved, pursuant to § 52-109 and Practice Book Section 9-20, to substitute Premier Development as party plaintiff. Defendant objected to that motion and on January 7, 2008, moved to dismiss, pursuant to § 49-39, on the grounds that plaintiff had failed to meet the requirements of that statute.
The general rule is that whenever a motion to dismiss is filed, it must be ruled upon first. Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 32 (1978); Baldwin Piano and Organ Company v. Blake, 186 Conn. 295, 297-98 (1982); Johndrow v. State, 24 Conn.App. 719, 722 (1991). As stated in Federal Deposit Insurance Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99 (1996), "`It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.' [citations omitted] . . . `Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one step further in the cause, as any movement is necessarily the exercise of jurisdiction.'" (Citations omitted.)
However, in recent years at least fourteen Superior Courts have decided that a motion to dismiss does not preclude them from deciding a motion to substitute or add party plaintiffs in order to save the cause of action. Lupinacci v. Stamford, 48 Conn.Sup. 1 (2003) and Scelza v. Onore, No. CV 02-0821526, Judicial District of Hartford at Hartford (Satter, J., April 17, 2007) [ 43 Conn. L. Rptr. 724], list the citation of those cases.
Section 52-109 provides:
When an action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through a mistake, and it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.
The statute has been deemed remedial and has been liberally construed to "permit the substitution of parties as the interests of justice require." Federal Deposit Insurance Corp. v. Retirement Management Group, Inc., 31 Conn.App. 80, 84 (1993). In Delieto v. County Obstetrics Gynecology Group, 26 Conn. L. Rptr. 345 (January 31, 2000, Sheldon, J.), Sheldon concluded that the court can decide the motion to substitute when the action can be saved from dismissal by so doing. In Lupinacci v. Samford, 48 Conn.Sup. 1, the court granted the plaintiff's motion to substitute on the ground that, "Where substitution is necessary for the determination of the real matter in dispute, the issues of substitution may be addressed under the reasoning that the court should liberally interpret the rules of practice in any case where it shall be manifested that a strict adherence to them would work injustice." at p. 3.
However, in all those cases the substitution of plaintiff was permitted, in spite of a motion to dismiss, for the sole purpose of curing the lack of standing of the wrong plaintiff having brought the action. No other substantive rights were implicated.
In the instant case however, because substitution of plaintiff relates back to the date of the start of the action ( Sharp v. Mitchell, 209 Conn. 59, 70-75 (1988); Federal Deposit Ins. Corp. v. Retirement Management Group, 31 Conn.App. 80, 85 (1993), allowing the substitution of plaintiff would very much affect substantive rights.
Section 49-39 provides in relevant part:
A mechanics lien shall not continue in force for a longer period than one year after the lien has been perfected, unless a party claiming the lien commences an action to foreclose it and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien is recorded . . . (Italics added)
In Connecticut a mechanics lien is a creature of statute and establishes a right of action where none existed at common law. As stated in H.D. Bass, Associates v. Ethan Allen, Inc., 26 Conn.App. 426, 429, "It is the general rule that where a statute creates a right of action that did not exist in common law and fixes the time which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone." The court continued that "The plain intent of this statute [§ 49-39] is to clear the title to the premises unless an action of foreclosure is brought within the time limit for the continuance of the lien. The phrase `no mechanics lien shall continue in force' is conclusive . . . The lien of this defendant and the liens of others who fail to commence an action of foreclosure within the time limited by the statute, are no longer in force; as liens they have ceased to exist."
Plaintiff Premier Building is not the "party claiming the lien." That party is Premier Development which is sought to be substituted as a party. But, Premier Development did "not commence an action to foreclose [the lien] . . . within one year from the date the lien was recorded." Because it failed to do so, as stated in Bass, "the lien ceased to exist."
Granting the motion to substitute would resurrect a cause of action terminated by the passage of the one year and very much prejudice the defendant. Under such circumstances, the court will determine the motion to dismiss first.
In Isaac v. Mt. Sinai Hospital, 3 Conn.App. 598 (1985), the plaintiff brought a medical malpractice action against the defendant hospital and physicians in 1981 alleging she had been appointed administratrix of the decedent's estate. In 1982, she discovered she had not been appointed administratrix and had herself so appointed that year. Defendant moved to dismiss for lack of jurisdiction on the grounds that, pursuant to § 52-555, only an executor or administrator may bring an action for wrongful death on behalf of the decedent. The plaintiff moved to be substituted as party plaintiff in her capacity as administratrix. In addition to the court ruling on the defendant's motion to dismiss before reaching the plaintiff's request to substitute party plaintiff, the court also noted that by the time the plaintiff was appointed administratrix the three-year limitation for bringing an action under Section 52-555 had passed. It said, "The general rule is that a time limitation on the enforcement of a right, created by statute and not existing at common law, is a part of that right and must be met in order to provide a court with jurisdiction to hear the cause of action." As a consequence the court granted the motion to dismiss and denied the motion to substitute the party plaintiff.
Similarly, in Johndrow v. State, 24 Conn.App. 719, the plaintiff brought an action to recover for injuries against the State of Connecticut. Since plaintiff was injured while in the course of employment with Nutmeg Piping Supply and Service, Inc. (Nutmeg), plaintiff notified Nutmeg that he had commenced the action against the State. On August 25, 1989, Hartford Accident Indemnity Co. (Hartford), which insured Nutmeg for its liability under the Workers' Compensation Act, moved to intervene in the plaintiff's suit as a plaintiff, which motion was granted. Subsequently Hartford filed a motion to substitute the plaintiff's employer Nutmeg as an intervening plaintiff in place of Hartford. Plaintiff Johndrow moved to dismiss Hartford's intervening complaint on the grounds that Hartford had no standing to intervene because § 31-293 grants the right of intervention in this case exclusively to an employer and that the court lacked subject matter jurisdiction. The trial court agreed. The Appellate Court affirmed. It noted that under § 31-293(a), an employer, having paid workers' compensation, may bring an action against the tortfeasor to recover any amount he has paid to the injured employee, but he must move to intervene as a party plaintiff within thirty days after notice that the employee has started the action. If the employer fails to do so, his right of action against such third person shall abate. The Appellate Court held that Hartford did not constitute an employer under § 31-293 and had no right to intervene. Moreover, Nutmeg, by failing to move for intervention in a timely fashion, also lost any right it may have had to intervene in the action. The court stated "Once statutory notice had been given by the employee to the employer, the employer has thirty days to intervene or `his right of action against such third person shall abate.'" (Emphasis as in opinion.) at p. 721-22. Because Nutmeg did not move to intervene within the thirty days of receiving notice of the suit, it lost its right to intervene. The court granted plaintiff's motion to dismiss and held that Hartford's motion to substitute was moot and need not be considered on its merits.
Based on the court's determination that plaintiff Premier Building had no standing to bring this action, that Premier Development, the plaintiff party sought to be substituted, failed to bring a foreclosure action within one year of the filing of the mechanic's lien, defendant's motion to dismiss is granted and plaintiff's motion to substitute party plaintiff is moot.