Opinion
No. CV 06-5003285
September 24, 2009
MEMORANDUM OF DECISION AS TO DEFENDANTS' MOTION TO DISMISS
The plaintiff brought this action to foreclose a mechanic's lien that it perfected by recording it in the land records of North Haven, Connecticut on March 14, 2005. One year and three days thereafter, on March 17, 2006, the plaintiff recorded a notice of lis pendens on the North Haven land records. The next day, on March 18, 2006, the plaintiff commenced the present action by serving the summons and complaint on, inter alia, an individual that the marshal identified as the registered agent authorized to accept service for the defendant, WA455 Associates, LLC, which, as evidenced by its name, is a limited liability company. On June 19, 2009, the defendant filed a motion to dismiss in which it argues that the court lacks subject matter jurisdiction over the plaintiff's action because the plaintiff failed to commence the action and to file the notice of lis pendens within one year of the date it perfected the lien, as required by § 49-39.
Section 49-39 provides in relevant part: "A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint . . . 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 was recorded . . . Each such lien, after the expiration of the one-year period . . . without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law . . ." (Emphasis added.)
In discussing the first time limitation in a previous version of this statute, the Connecticut Supreme Court stated "[t]he lien is a creature of the statute, and the General Assembly, which created the right, may set a limit to the term of its existence . . . The plain intent of this statute is to clear the title to the premises unless an action of foreclosure is brought within the time limited 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and the liens of others who failed to commence any action of foreclosure within the time limited by the statute, are no longer in force; as liens they have ceased to exist." Persky v. Puglisi, 101 Conn. 658, 666, 127 A. 351 (1925).
More recently, the Appellate Court reiterated that "§ 49-39 is not merely a limitation of the remedy, but is a limitation of the cause of action itself . . . In order for a party to foreclose a mechanic's lien it must comply with the requirements of § 49-39. Compliance with § 49-39 mandates that the party seeking to foreclose the lien must, within one year from the date the lien is recorded, (1) commence an action to foreclose the lien, and (2) record a notice of lis pendens." H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 429-30, 601 A.2d 1040 (1992).
In that case, the trial court entered judgment in favor of the plaintiff on its action to foreclose a mechanic's lien. On appeal, the Appellate Court determined that the trial court lacked jurisdiction over the plaintiff's action despite that fact that it had commenced the action within one year of the date it recorded its lien, because it did not comply with the second time limitation of § 49-39 in that it did not record the notice of lis pendens until six days after the one-year period expired. Id., 430. As the court explained, "The notice of lis pendens in the present action was not properly recorded as required by General Statutes § 49-39 . . . Accordingly, the mechanic's lien filed by the plaintiff became `invalid and [was] discharged as a matter of law;' General Statutes § 49-39; on September 19, 1986, one year after the lien had been recorded. Because the mechanic's lien was invalid and is discharged as a matter of law, any award that was predicated on its validity is similarly invalidated. We conclude, therefore, that the trial court was without jurisdiction to render judgment for the plaintiff." H.G. Bass Associates, Inc. v. Ethan Allen, Inc., supra, 26 Conn.App. 432.
Clearly, the plaintiff in the present matter did not comply with either time limitation, as it did not commence the action until one year and four days after it recorded the lien, and did not record its notice of lis pendens until one year and three days after it recorded the lien. Therefore, unless both of the limitations periods are tolled, the lien is discharged as a matter of law since this court does not have jurisdiction over the matter.
The plaintiff first argues that the defendant should be "equitably estopped" from raising the question of the timeliness of the plaintiff's commencement of the action in that the defendant did not raise the question during the three years that the action has been pending. Unfortunately for the plaintiff, it is apparent from language that the court used in H.G. Bass Associates, Inc. v. Ethan Allen, Inc., supra, 26 Conn.App. 432, that the question of the court's jurisdiction over this action can be raised at any time. Moreover, "[t]here are two elements which must be established in order to find an estoppel: one party must do or say something that is intended or calculated to induce another into believing in the existence of certain facts and to act upon that belief, and the other party must thereby actual change his position or do some act to his injury which he would not otherwise have done." John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984). In this context, the plaintiff does not allege that the defendant did or said anything that caused the plaintiff to believe that its action was timely. More tellingly, the plaintiff does not explain how the defendant's failure to raise the issue prior to doing so in its motion to dismiss caused the plaintiff to change its position to its detriment. The plaintiff had already missed the deadline for commencing the action and recording the notice of the lis pendens. Thus, the plaintiff has not established either element of estoppel. Accordingly, the defendant is not equitably estopped from raising the argument that the court lacks jurisdiction over this action.
Secondly, the plaintiff contends that the limitations period for its commencement of the action should be tolled because the defendant engaged in a continuing course of wrongful conduct. The initial wrong, according to the plaintiff, was the defendant's failure to pay the plaintiff for its work, and the continuing wrong was the defendant's failure to provide the office of the secretary of state with the correct address of its agent for service of process, as required by General Statutes § 34-104. Even assuming that the equitable doctrine known as the continuing course of conduct would apply in such circumstances, the plaintiff cannot rely on it to save this action for several reasons.
The Connecticut appellate courts have decided that certain statutes of limitation may be tolled pursuant to the continuing course of conduct doctrine. Under that doctrine, "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after the commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct related to the prior act." (Internal quotation marks omitted.) Vanliner Ins. Co. I v. Fay, 98 Conn.App. 125, 140, 907 A.2d 1220 (2006). In general, "the continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 201-02, 905 A.2d 1135 (2006). It is not apparent that the plaintiff and the defendant had an ongoing relationship or that the plaintiff had any difficulty identifying the initial "wrongful" conduct that the defendant allegedly engaged in. Furthermore, it is not apparent that the initial and later "wrongful conduct" were related to each other in the manner required for the application of the doctrine.
The first reason, which is dispostive, is that even assuming the doctrine applies to toll the limitations provision for commencing the action, it does not affect the plaintiff's failure to comply with the requirement of recording the notice of lis pendens on the land records within one year of the date that it recorded its lien, as is specifically required by § 34-105. As previously explained, this is the time limit that the Appellate Court was referring to in H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 432, when it stated that, because the plaintiff did not record the lis pendens on the land records in a timely manner, "the mechanic's lien filed by the plaintiff became invalid and [was] discharged as a matter of law . . . one year after the lien had been recorded." (Internal quotation marks omitted.) Likewise, in the present matter, the plaintiff's failure to record its notice in a timely manner deprives this court of jurisdiction over the action as the lien is "invalid and discharged as a matter of law." Id. The court could grant the defendant's motion to dismiss on this ground alone.
As to the plaintiff's failure to timely commence the action, it has not provided the court with any evidence that the defendant's failure to comply with § 34-104 prevented the plaintiff from commencing the action in a timely manner. In its objection to the motion, the plaintiff states that the defendant's failure to provide the correct address of its agent for service of process to the secretary of state resulted "in a delay to the marshal in such service." It does not, however, provide the court with any evidence that it did so.
In addition, the plaintiff does not present any evidence that this incorrect address precluded it from commencing the action in a timely manner by using one of the alternative methods that were available to it. Specifically, because the defendant is a limited liability company, two alternatives for commencing the action were available to the plaintiff, i.e., General Statutes §§ 34-105 and 52-57(c). See McGill v. Colchester Dental Group, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5007464 (January 21, 2009, Abrams, J.) ( 47 Conn. L. Rptr. 77, 77-78). The plaintiff choose to commence the action by serving the process on the defendant's registered agent for service of process, which is the alternative provided for by General Statutes § 34-105. That statute provides in relevant part: "(a) Any process . . . in connection with any action . . . required or permitted by law to be served upon a limited liability company which is subject to the provisions of section 34-104, may be served upon the limited liability company's statutory agent for service by any proper officer . . . by leaving a true and attested copy of the process . . . with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state . . . (d) Nothing contained in this section shall limit or affect the right to serve any process . . . required or permitted by law to be served upon a limited liability company in any other manner permitted by law." General Statutes § 34-105.
General Statutes § 52-57 provides one such alternative. That statute provides in relevant part: "(c) In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary . . . or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located . . ." General Statutes § 52-57.
In Gallop v. Commercial Painting Co., 42 Conn.Sup. 187, 612 A.2d 826 (1992) [ 6 Conn. L. Rptr. 9], the plaintiff similarly argued that the defendant corporation should be equitably estopped from arguing that the plaintiff did not commence her action in a timely manner because the defendant had provided the secretary of state with misleading information regarding its agent for service of process. The court rejected this argument on the basis that, while the defendant's conduct may have had an impact of the plaintiff's ability to serve the defendant though its agent for service of process under General Statutes § 33-297 (now § 33-663), it did not prevent the plaintiff from serving the defendant pursuant to one of the methods listed in § 52-57(c), which, according to the court, "provides a host of alternative methods by which a corporation may be served . . ." Id., 191. As the court explained, "`[t]here are two elements which must be established in order to find an estoppel: one party must do or say something that is intended or calculated to induce another into believing in the existence of certain facts and to act upon that belief, and the other party must thereby actual change his position or do some act to his injury which he would not otherwise have done.' John F. Epina Realty, Inc. v. Space Realty, Inc., [ supra, 194 Conn. 85].
"It must be admitted at the outset that these words, at one level of generality, do apply to the facts at hand. The defendant did something calculated to induce another into believing in the existence of certain facts and to act on that belief by naming a statutory agent for service. The plaintiff also did an act to her injury which she would not otherwise have done by attempting to serve the statutory agent at an apparently nonexistent address. To state the case at this level of generality, however, ignores two important details. First, as previously explained, there were alternative methods of service readily available. The defendant maintained a place of business in Southington and was not exactly hiding out. Second, the injury to the plaintiff incurred by her unsuccessful attempt to serve the agent and the subsequent passing of the statute of limitations deadline was a result of a late start. If she had given herself a few more days, she would have had plenty of time to discover that the agent could not be located and to serve the defendant at its office building. Should the defendant be estopped under these circumstances from asserting the statute of limitations? Although the question is a close one, the court concludes that the answer is no . . . The defendant, while no model of purity, is claiming the benefit of a statute passed by the legislature, and the plaintiff has only herself to blame for her late start and her failure to use "alternative methods of service . . ." Gallop v. Commercial Painting Co., 42 Conn.Sup. 194-95.
The court acknowledged that "[c]oncealment of fraud . . . has by many courts been considered good cause for tolling the statute of limitations. As the United States Supreme Court explained, however, `this is a very different thing from attempting to avoid service of process, and cannot be cited as aiding in any way the adoption of such a rule in the latter case. Concealment of fraud prevents a party from knowing that he has been injured and has a cause of action. He cannot take any steps to avoid redress. But when a party knows that he has a cause of action, it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim or instituting such proceedings as the law regards sufficient to preserve it.' [ Amy v. Watertown, 130 U.S. 320, 325, 9 S.Ct. 537, 32 L.Ed. 953 (1889)] . . . There is . . . some authority that estoppel may be invoked where a defendant has suggested service of process at a place where he could not be found and where no other means of service of process existed. Those cases are, however, a far cry from the present case. The defendant, to repeat, was not hiding out, and alternative means of service were available to the plaintiff.
"The court does not mean to imply that the defendant's behavior has been exemplary. State statutes, however, make no provision for the peculiar inability to make service that the plaintiff experienced here, and the law of equity will grant no indulgence in these circumstances." (Citations omitted.) Gallop v. Commercial Painting Co., supra, 42 Conn.Sup. 196-97. See also Wildman v. Cook, Superior Court, judicial district of Fairfield, Docket No. CV 96 0303979 (November 10, 1997, West, J.) ( 20 Conn. L. Rptr. 575). In that case, the plaintiffs, like the plaintiff in this action, did not file the notice of lis pendens within the statutory time limit set in § 49-39, and the court rejected the plaintiffs' argument that equitable doctrine of unclean hands precluded the defendant from asserting that the court lacked jurisdiction over the action. The court explained that "the plaintiffs themselves have failed and/or neglected to protect their own rights since the recordation of the mechanic's lien . . . While equity does not require absolute efficiency of a plaintiff . . . the court need not apply equitable principles where the plaintiffs merely had to file the notice of lis pendens within one year of the recordation of the mechanic's lien and failed to do so." Id., 576. Therefore, the court granted the defendant's motion to dismiss. Id.
Under these present circumstances, the one-year limitation for commencing the plaintiff's action to foreclose its mechanic's lien should not be tolled. Therefore, the lien also became invalid and was discharged as a matter of law due to the plaintiff's failure to comply with this time limit. Accordingly, the defendant's motion to dismiss is granted.