Opinion
No. CV-09-5010446S
November 12, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 103)
PROCEDURAL HISTORY
The plaintiff, Deborah McGhee-Fichtner doing business as Veteran Builders and Restoration, commenced this action by service of process in February of 2009. According to the three-count complaint, on May 1, 2008, the plaintiff filed a mechanic's lien upon real property owned by the defendant Joseph Kusek. The mechanic's lien, attached to the complaint, names Veteran Builders and Restoration (Veteran) as the claimant. The accompanying certificate is signed by Deborah McGhee-Fichtner, and attests that the amount owed in the mechanic's lien is due to Veteran. In the complaint, the plaintiff alleges that the defendant entered into a contract with the plaintiff for improvements to property located at 369 Old Jewett City Road, Preston, Connecticut (property) and that the defendant owes the plaintiff $19,924.17, plus statutory interest and attorneys fees, for services rendered pursuant to that contract. The plaintiff seeks, inter alia, a foreclosure of the lien, immediate possession of the property and a deficiency judgment. On February 3, 2009, the plaintiff recorded a notice of lis pendens on the Preston land records.
The plaintiff also names Suntrust Mortgage, Inc. (Suntrust) as a defendant and alleges that it claims an interest in the property by way of a mortgage that may be subsequent in right to the mechanic's lien of the plaintiff. Suntrust filed an answer to the complaint on February 18, 2009, where it denied that its interest in the property is subsequent in right to the plaintiff's claim. Hereinafter, the only defendant referred to in this memorandum will be Joseph Kusek.
The plaintiff attached to the complaint, as Exhibit B, a document labeled "New Home Bid Proposal," with the initials "JK" handwritten on each page. Both parties refer to this document as the operative contract.
On March 19, 2009, the defendant filed a motion to dismiss the first count of the complaint, entitled "Foreclosure of Mechanic's Lien," on the grounds that the court lacks subject matter jurisdiction because the mechanic's lien is not valid and the plaintiff does not have standing to foreclose on the mechanic's lien. The defendant also moved to dismiss the first count on the ground that service of process was insufficient because the notice of lis pendens was not served within thirty days of its recording. The defendant filed a memorandum of law in support of his motion. On May 04, 2009, the plaintiff filed an objection to the motion, accompanied by a memorandum of law, in which she asserts that the plaintiff has standing to foreclose on the mechanic's lien. The plaintiff also contends that the mechanic's lien certificate is valid and that the notice of lis pendens was not required to be served upon the defendant within thirty days of being recorded. The parties were heard at short calendar on June 9, 2009.
The defendant also filed an affidavit in which he states that he was not served with a copy of the lis pendens. He also asserts in the affidavit that, even though the mechanic's lien lists July 20, 2007 as a commencement date, the plaintiff did not provide any labor or material to the property prior to October 10, 2007.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
Subject Matter Jurisdiction
"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Louis Gherlone Excavating, Inc. v. McLean Construction Co., Inc., 88 Conn.App. 775, 780, 871 A.2d 1057 (2005), cert. granted, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn February 3, 2006).
General Statutes § 49-34 provides in relevant part: "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 [property] 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 . . ."
In his motion to dismiss, the defendant argues that the mechanic's lien is not valid because it does not meet the requirements outlined in § 49-34, and, therefore, the court lacks subject matter jurisdiction over this foreclosure action. Specifically, the defendant claims that the mechanic's lien is defective because the plaintiff was not the person "performing the services or furnishing the materials" and therefore, is not the proper claimant. The defendant further argues that the mechanic's lien certificate did not include a sworn statement by the proper claimant. Finally, the defendant claims that the mechanic's lien is invalid because it reflects the wrong commencement date for services performed.
The defendant, however, is improperly attacking the validity of a mechanic's lien through a motion to dismiss. The failure to adhere to the formalities of § 49-34 does not deprive the court of subject matter jurisdiction to hear the case and decide the issue of lien validity. See Louis Gherlone Excavating, Inc. v. McLean Construction Co., Inc., supra, 88 Conn.App. 781 (finding that trial court had improperly dismissed action to foreclose upon mechanic's lien on grounds that such lien did not comply with § 49-34). "Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction . . . or, if there had never been a valid lien . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the [mechanic's lien] . . . After filing an answer and special defense, the defendants may move for summary judgment." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 781. Accordingly, even if the lien were invalid, such invalidity would not be a proper basis for dismissal. It should be raised as a defense to this action. See also McDonough v. Collender, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001213 (August 8, 2007, Jennings, J.) [44 Conn. L. Rptr. 209] (failure to comply with § 49-34 is not a valid ground for a motion to dismiss).
The defendant also argues that the plaintiff lacks standing to foreclose upon the mechanic's lien. "The issue of standing implicates the court's subject matter jurisdiction. Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard . . . The question of standing does not involve an inquiry into the merits of the case . . . It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by the statute or common law." (Citations omitted; internal quotation marks omitted.) Taff v. Bettcher, 35 Conn.App. 421, 424-25, 646 A.2d 875 (1994).
"In order to determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief . . . The plaintiff must be within the zone of interests protected by the statute." (Citations omitted; internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 545-46, 825 A.2d 90 (2003). Thus, resolution of the issue of standing in this case depends primarily on whether the plaintiff is within the zone of interests protected by the mechanic's lien statutes.
"[T]he stated purpose of . . . our mechanic's lien statute is to protect individuals who in good faith provide materials or labor for the construction of buildings." Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn.App. 352, 359, 849 A.2d 922 (2004). "Although the mechanic's lien law creates a statutory lien in derogation of the common law, its remedial purpose to furnish security for a contractor's labor and materials requires a generous construction . . . Even bearing in mind the statute's beneficent purpose, we are, however, constrained by the language of the statute as we find it, and cannot rewrite the statute . . ." (Internal quotation marks omitted.) Id., 356.
The mechanic's lien statute dictates that only the appropriate claimant has standing to foreclose upon a mechanic's lien. General Statutes § 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 . . ." A claimant is defined as a person who provided services or rendered materials "in the construction, raising, removal or repairs of any building . . . by virtue of an agreement with or by consent of the owner of the land . . ." General Statutes § 49-33.
The defendant argues that the plaintiff does not have standing to foreclose on the mechanic's lien for two reasons. First, the defendant argues that the plaintiff cannot foreclose upon the mechanic's lien because Veteran, and not McGhee-Fichtner, was the contracting entity, and therefore, she cannot assert any rights pursuant to the contract. The defendant further argues that the plaintiff lacks standing because the mechanic's lien names Veteran as the claimant. Therefore, the defendant concludes that this action should have been instituted by Veteran. Additionally, the defendant points out that if Veteran is a trade name, it is not a legal entity that can institute a foreclosure action. Therefore, like McGhee-Fichtner, it would not have standing to foreclose on the lien either.
The plaintiff counters that any reference in the contract or mechanic's lien documents to Veteran is also a reference to McGhee-Fichtner, who is doing business under that name. The plaintiff also argues that McGhee-Fichtner performed the services on the property and signed the mechanic's lien certificate. Additionally, the plaintiff argues that McGhee-Fichtner's name and contractor license number were both listed on the contract, thereby giving notice to the defendant that she was a party to the contract.
The defendant correctly points out that only parties to the underlying contract have standing to foreclose on the mechanic's lien. See Chiulli v. Zola, 97 Conn.App. 699, 705-07, 905 A.2d 1236 (2006) (sole shareholder of a corporation did not have standing to foreclose on a mechanic's lien in his individual capacity because underlying contract was between the defendant and the corporation. Corporate law dictated that the shareholder could only bring suit in his capacity as a president or shareholder). However, in this case, the defendant has introduced no evidence that the plaintiff is not a party to the contract.
In her memorandum of law in opposition to the motion, the plaintiff clarifies that Veteran is a trade name, registered with the town clerk of Jewitt City pursuant to General Statutes § 35-1. That statute, which governs "trade names," provides that anyone wishing to conduct business under a name, other than his real name, must file a certificate in the office of the town clerk in the town in which such business is to be conducted. The purpose of the filing requirement is "to protect [those doing business with the trade name] by giving them constructive notice of the contents of the trade name certificate . . . The object [of the registration requirement] is to enable a person dealing with another trading under a name not his own, to know the man behind the name, that he may know or make inquiry as to his business character or financial responsibility." (Citations omitted; internal quotation marks omitted.) America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 479, 866 A.2d 698 (2005). Therefore, a trade name, by itself, cannot be a named plaintiff because it is merely a fictitious name. Accordingly, this court would not have jurisdiction over an action that merely names Veteran as a plaintiff Id.
The plaintiff did not allege in her complaint, nor submit any other evidence, that Veteran is actually a trade name registered pursuant to § 35-1. Nevertheless, this is an inference that may be drawn from the allegations in the complaint. When deciding a motion to dismiss, the court "must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). Moreover, the defendant, in his motion, does concede that Veteran may be a trade name and there is no assertion by any party that Veteran is an incorporated entity. Since the defendant is not disputing Veteran's status as a trade name, and has not submitted any evidence otherwise, "the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." Id., 652.
In this case, however, the complaint does not name Veteran as a plaintiff. Instead, the named plaintiff is "Deborah McGhee-Fichtner d/b/a Veteran Builders and Restoration." "The designation `d/b/a' means `doing business as' but [it] is merely descriptive of the person or corporation who does business under some other name." Simpson v. DL Tractor Trailer School, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008081 (December 19, 2007, Maiocco, J.T.R.) [44 Conn. L. Rptr. 673]. "In essence . . . the trade names [are] not distinct separate entities, but rather . . . the owners of the trade name and the trade name entities [are] one and the same." Id. As the defendant points out, the named parties to the contract are the defendant and Veteran. Consequently, because Deborah McGhee-Fichtner is the owner of the trade name entity, Veteran, then, they are one and the same. Thus, if a valid contract existed between Veteran and the defendant, the plaintiff is the actual party to that contract. It follows, therefore, that the plaintiff may validly assert rights under that contract. See Nadeau v. Bagley, Superior Court, judicial district of Tolland, Docket No. CV 93 54613 (September 12, 1994, Kaczak, J.) (plaintiff, Norman d/b/a Nadeau Drywall, had standing to foreclose on a mechanic's lien where the party named on the underlying contract was Nadeau Drywall, Inc., because the evidence showed that, at the time of the contract, the corporation had been dissolved, the plaintiff was really doing business as a sole proprietorship, and he was merely using old pre-printed forms that still indicated the corporate name).
The remaining issue, with respect to standing, is whether the plaintiff can reasonably be construed as "any person who has a claim," as that term is used in § 49-33, even though the mechanic's lien was filed under Veteran's sole name. Generally, a third party cannot foreclose on a mechanic's lien filed by another entity. Premier Building Development, Inc. v. Falotico, Superior Court, judicial district of Hartford, Docket No. CV-04-4002160 (February 4, 2008, Satter, J.T.R.) [44 Conn. L. Rptr. 864] (plaintiff, Premier Building Development, Inc., could not foreclose on mechanic's lien filed by another corporation, Premier Development, Inc., because they were separate entities). Nevertheless, in this case, the defendant has offered no evidence that the plaintiff and Veteran are not the same entity. Moreover, as the court "must consider the allegations of the complaint in their most favorable light;" (internal quotation marks omitted) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009); the court must take the plaintiff's allegations that she was really doing business as Veteran Builders and Restoration as true, absent evidence to the contrary.
The plaintiff's reliance on America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 474, is misplaced. In that case, the plaintiff, America's Wholesale Lender (America), a trade name for Countrywide Home Loans, Inc. (Countrywide), filed an action to foreclose on a mortgage. Id., 475-76. America, and not Countrywide, was the named lender on the mortgage note. Id., 475. The court held that America could not be named as a plaintiff because a trade name cannot file an action in court. Id., 477. The court's primary concern was that the filing of an action under a trade name had the potential of concealing the plaintiff's true identity. "As court filings are a matter of public record, we cannot conclude that no harm would come to the public by permitting legal entities to commence actions under fictitious names, as court documents are another means by which the public may ascertain the identity and the character of those with whom they do business." Id., 480. The court concluded that in order for the trial court to have subject matter jurisdiction, Countrywide, the entity with a real legal existence, should have filed the action in its own name, even though America was named on the note. Id., 479-80.
Procedurally, mechanic's liens may be foreclosed in the same manner as a mortgage. General Statutes § 49-33(i).
The policy concerns raised in America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 480, however, do not apply to the present case. Here, the plaintiff has not filed suit solely under a trade name. Rather, the complaint names a person with a legal existence, McGhee-Fichtner, as the person who is doing business as Veteran, the entity named on the mechanic's lien. See Allen Construction, Inc. v. Cabanilla, Superior Court, judicial district of Fairfield, Docket No. CV 00 376419 (June 7, 2001, Rush, J.) (allowing the plaintiff to substitute Jesse Allen d/b/a Allen Construction as the plaintiff in an action to foreclose on a mechanic's lien filed by Allen Construction). Furthermore, there is no allegation that Veteran exists as a separate legal entity with the capacity to file its own foreclosure action. Nor is there any danger that filing under the name, Deborah McGhee-Fichtner doing business as Veteran Builders and Restoration, conceals the true identity of the plaintiff. Accordingly, the plaintiff has standing to foreclose on a mechanic's lien that was filed in Veteran's name.
Insufficiency of Process
The defendant's final argument in support of his motion is that this court must dismiss the first count of the plaintiff's complaint because the notice of lis pendens was not served within thirty days of its recording, as required by General Statutes § 52-325(c). As a result, the defendant argues that there was "insufficiency of service of process." The plaintiff counters that § 52-325(c) does not require such notice to be filed in a suit to foreclose a lien.
The defendant filed his appearance on February 20, 2009. His motion to dismiss to challenge the service of process was timely because it was filed within thirty days of that date. See Practice Book § 10-30.
"[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
"Since a lis pendens under § 52-325 is a creature of statute, the party who invokes its provisions must comply with the statutory requirements." Manaker v. Manaker, 11 Conn.App. 653, 660, 528 A.2d 1170 (1987). Section 52-325(a) allows a plaintiff, who has filed an action, to record a notice of lis pendens on the land records, if such action affects real property. These provisions also apply to mechanic's liens. See § 52-325(a). While the statute does require that the plaintiff serve the property owner with the notice of lis pendens within thirty days of its recording, suits to foreclose a mechanic's lien are specifically exempted. Section 52-325(c) provides in relevant part: "[I]n any action except a suit to foreclose a mortgage or other lien, no recorded notice of lis pendens shall be valid or constitute constructive notice thereof unless the party recording such notice, not later than thirty days after such recording, serves a true and attested copy of the recorded notice of lis pendens upon the owner of record of the property affected thereby." (Emphasis added.)
Therefore, because the first count of the plaintiff's complaint is "a suit to foreclose a mortgage or other lien," the plaintiff was not required to serve the defendant with a copy of the notice of lis pendens within thirty days after its recording. Accordingly, the defendant's motion to dismiss the first count of the complaint on the ground of insufficient service of process is denied.
CONCLUSION
For the foregoing reasons, this court denies the defendant's motion to dismiss the first count of the plaintiff's complaint because invalidity of the lien would not deprive the court of subject matter jurisdiction, the plaintiff has standing to foreclose upon the mechanic's lien, and the plaintiff was not required to serve the defendant with a notice of lis pendens within thirty days after its recording.