Connecticut Steel Co., Inc. v. National Amusements, Inc.

• Citation: 166 Conn. 255,348 A.2d 658
• Court: Supreme Court of Connecticut
• Decision Date: 26 March 1974
• Parties: CONNECTICUT STEEL COMPANY, INC. v. NATIONAL AMUSEMENTS, INC., et al.

Page 658

348 A.2d 658

166 Conn. 255

CONNECTICUT STEEL COMPANY, INC. v. NATIONAL AMUSEMENTS, INC., et al.

Supreme Court of Connecticut.

March 26, 1974.

Anthony J. Lasala and David M. Reilly, Jr., New Haven, for appellant (plaintiff).

Kalman A. Sachs, New Haven, with whom was Joseph J. Sensale, New Haven, for appellee (named defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The plaintiff, Connecticut Steel Company, Inc., brought an action to foreclose a mechanic's lien against property of the named defendant National Amusements, Inc. (hereafter the defendant), the lien in question being based upon services and material the plaintiff had provided in erecting structural steel, steel joinsts and steel deck on the defendant's property pursuant to plans and specifications for the construction of a building which was to house three movie theaters. The matter was referred to Hon. Patrick B. O'Sullivan, a state referee, who, exercising the powers of the Superior Court, rendered judgment for the plaintiff on April 4, 1973. The defendant thereupon appealed from that judgment to this court, but while its appeal to this court was pending, the defendant filed with the trial court a 'motion to reopen judgment and to erase for want of jurisdiction,' claiming that the plaintiff did not obtain final judgment within two years from the date the action was commenced as required by § 49-39 of the General Statutes. On June 11, 1973, after a hearing on that motion, the trial court opened the judgment of April 4, 1973, and erased the case from the docket. The plaintiff has appealed to this court from the decision of the trial court granting the motion.

This appeal may be said to be a direct result of our decision in Diamond National Corporation v. Dwelle, 164 Conn. 540, 325 A.2d 259, wherein we construed § 49-39 ¹ to require a lienor to obtain judgment within two years from the institution of suit to foreclose his lien, and held that the limitation was one against the right rather than the remedy. The trial court based its decision to grant the defendant's motion on the Diamond National case, ² and the plaintiff's assignments of error are directed primarily at the applicability of that decision to the present case, the correctness of its interpretation of § 49-39 and the constitutionality of that statute as so interpreted. The facts relevant to determining the issues presented here, as disclosed by the record, are that the plaintiff's lien was recorded in October, 1969, its action to foreclose the lien was instituted in August, 1970, and the judgment was rendered, as noted, on April 4, 1973. Thus, prior to judgment there had elapsed a period of less than four years from the perfection of the lien but of more than two years from the institution of the action to foreclose.

We consider first the plaintiff's claim that the court erred in its application of the time limitations of § 49-39, a claim which raises an issue not expressly decided in Diamond National Corporation v. Dwelle, supra. Relying on the first sentence of § 49-39, ³ the plaintiff argues that the only self-limiting period of time stated in the statute is the four-year provision and that the other time provisions are merely descriptive of the events giving rise to the four-year limitation. In essence, the plaintiff is arguing that the court only loses jurisdiction after four years have elapsed from the date of perfection when the party has not obtained final judgment within two years of commencing the action.

This issue was not specifically addressed in Diamond National Corporation v. Dwelle, supra, because the four-year period had elapsed in that case, whereas it had not elapsed in the case before us. As we said in Diamond (p. 545, p. 259 of 325 A.2d): '(I)t is not clear from the section (§ 49-39) precisely how the time limitations operate-whether, for example, the lien expires only after four years, or whether it can expire two years after an action has been brought when final judgment has not been obtained.' To accept the plaintiff's interpretation of the time provisions of § 49-39 would, however, be inconsistent with the reasoning of Diamond and the cases upon which that decision was based.

As we stated in Diamond (p. 545, p. 259 of 325 A.2d): 'It also might be argued that the 1965 amendment limiting the time for judgment is merely a statute of limitation even though the limit for bringing an action based on a lien is a limitation on the right. This would create the curious situation of § 49-39 being both a condition on the right and a statute of limitation . . .. (W)e do not believe the legislature intended such a result. The amendment was passed to deal with the problem presented in Stanley Svea Coal & Oil Co. v. Williamantic Savings & Loan Assn., 23 Conn.Sup. 329, 183 A.2d 285, where the Court of Common Pleas had to determine under § 49-39, prior to its amendment, whether final judgment had to be obtained within two years of the perfection of the lien. The court held that it did not. The legislature, in amending the section, obviously intended that the limitation on the time for obtaining final judgment be treated exactly as the limitation on the time for commencing the action.' (Emphasis added.)

Prior to Stanley Svea Coal & Oil Co. v. Willimantic Savings & Loan Assn., 23 Conn.Sup. 329, 183 A.2d 285, and the resulting amendment of § 49-39, this court decided Persky v. Puglisi, 101 Conn. 658, p. 666, 127 A. 351, p. 354, where it was stated, with reference to the limit for commencement of an action: 'The 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, unlerss an action of foreclosure is brought within the time limited for the continuance of the lien. The phrase 'no mechanic's lien shall continue in force' is conclusive. . . . The lien of this defendant, and the liens of others who failed to commence any action to foreclosure within the time limited by the statute, are no longer in force; as liens they have ceased to exist.' (Emphasis added.)

The reasoning of these cases leads us inexorably to the conclusion that the legislature intended the two two-year time provisions to be treated alike, and to the conclusion that they be treated, in and of themselves, as limitations on the right which do not have to be coupled with the termination of the four-year period in order for the court to lose subject-matter jurisdiction. This view is further buttressed by the portion of the statute reading as follows: 'Each such lien, after the expiration of each such tow-year period without action commenced and notice thereof filed as aforesaid, or obtaining final judgment, respectively, shall be discharged to record by the person claiming the same, upon the request of the owner of the property upon which the lien had been claimed or such owners' attorney.' ⁴ (Emphasis added.) In light of these considerations we cannot accept the plaintiff's interpretation of the time provisions of § 49-39.

The plaintiff proceeds to argue that § 49-39 requires action on the part of the property owner before the lien becomes ineffective, pointing, to support its position, to the language of the statute quoted in the preceding paragraph but more particularly to the last few lines thereof providing that such lien 'shall be discharged or record by the person claiming the same, upon the request of the owner of the property upon which the lien had been claimed or such owner's attorney.' (Emphasis added.) The record is devoid of any indication of such a request, nor does the defendant claim such a request was made, but we cannot agree with the plaintiff's contention. The essence of our holding in Diamond was that the time provisions of § 49-39 were limitations on the right. With the expiration of such a limitation, the right itself ceases to exist. See Persky v. Puglisi, supra. The language upon which the plaintiff relies clearly establishes a procedure for clearing the land records of mechanics' liens which are no longer in force, a procedure perfectly in keeping with the policy behind limitations on mechanics' liens, namely, to keep the title to land free of incumbrances. The defendant, therefore, did not need to make any request of the plaintiff before the lien could be invalidated.

We next consider the claim of the plaintiff that the provisions of § 49-39 are not jurisdictional and contain a statute of limitation which must be pleaded. This claim amounts to nothing more than a request that we overrule our decision in Diamond National Corporation v. Dwelle, supra, wherein we specifically stated (p. 544 of 164 Conn., p. 259 of 325 A.2d): 'Here, the limitations . . . are directed so specifically to the cause of action that under the general rule as well as under ordinary rules of construction the time limitations are limitations on the right.' (Emphasis added.) We went on to point out that (p. 547, p. 259 of 325 A.2d): "Here the remedy exists only during the prescribed period and not thereafter. . . . In such situations the statute of limitations is considered substantive or jurisdictional rather than procedural or personal (emphasis added).' Matter of Benjamin v. State Liquor Authority, 17 A.D.2d 71, 73, 230 N.Y.S.2d 888, rev'd on other grounds, 13 N.Y.2d 227, 246 N.Y.S.2d 209, 195 N.E.2d 889; Karp v. Urban Redevelopment Commission 162 Conn. 525, 529, 294 A.2d 633; Vegliante v. New Haven Clock Co., 143 Conn. 571, 580, 124 A.2d 526; Industrial Finance Corporation v. Danbury Shopping Center, Inc., 27 Conn.Sup. 200, 202, 233 A.2d 692.' As we have repeatedly held, the question of subject-mater jurisdiction can be raised at any time; Karp v. Urban Redevelopment Commission, 162 Conn. 525, 528, 294 A.2d 633; Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711; and...