J.C. Penney Properties, Inc. v. Peter M. Santella Co., Inc.

• Decision Date: 28 March 1989
• Docket Number: No. 13490,13490
• Citation: 555 A.2d 990,210 Conn. 511
• Parties: J.C. PENNEY PROPERTIES, INC. v. PETER M. SANTELLA COMPANY, INC.
• Court: Connecticut Supreme Court

Page 990

555 A.2d 990

210 Conn. 511

J.C. PENNEY PROPERTIES, INC. v. PETER M. SANTELLA COMPANY, INC.

No. 13490.

Supreme Court of Connecticut.

Argued Jan. 5, 1989.

Decided March 28, 1989.

Frederick D. Paoletti, Bridgeport, for appellant (plaintiff).

Andrew P. Nemiroff, with whom, on the brief, was Joseph T. O'Connor, Stamford, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and HULL, JJ.

HULL, Associate Justice.

The sole issue in this appeal is whether the provision in General Statutes § 49-34(1)(C), directing that a certificate of mechanic's lien be sworn to by the claimant, requires a written recital of the oath-taking on the certificate. We hold that the oath must appear in writing on the certificate of mechanic's lien for it to be valid under the statute. Accordingly, we conclude that the trial court erred in upholding the validity of a certificate of mechanic's lien that contained no written oath.

The facts pertinent to this appeal are as follows. Pursuant to General Statutes § 49-34, ¹ on November 16, 1987, the defendant electrical contractor filed a certificate of mechanic's lien in Danbury for $494,768, as security for electrical work in the construction of a J.C. Penney store in Danbury. ² On March 25, 1988, the plaintiff, J.C. Penney Properties, Inc., filed an application to discharge or reduce the certificate of mechanic's lien. General Statutes § 49-35a. At the hearing on the application, the plaintiff argued that the certificate failed to satisfy the requirement that it be sworn in accordance with General Statutes § 49-34(1)(C). The defendant argued that the statute requires only a signing under oath, and that the oath need not be set forth in the document itself. Clifford Gideon, the defendant's officer who signed the certificate, testified that Richard Raphael, an attorney, had administered an oath prior to the signing of the certificate. Raphael also testified that he had taken Gideon's statement under oath. The court, Hickey, J., in an oral opinion, denied the plaintiff's application. This appeal followed. ³

The parties do not dispute that Gideon acknowledged the certificate of mechanic's lien before Raphael. ⁴ Nor is there any question that such an acknowledgment is not equivalent to an oath swearing to the contents of the certificate. "It is not uncommon for the legislature to require that certain documents be acknowledged or verified. Such an acknowledgment is a public declaration or a formal statement of the person executing an instrument made to the official authorized to take the acknowledgment that the execution of that instrument was his free act and deed.... On the other hand, a requirement that a document be 'sworn to' contemplates the execution of an affidavit that the facts contained in it are true. 3 Am.Jur.2d 380, Affidavits, § 2." (Citations omitted.) State v. Wolfe, 156 Conn. 199, 205, 239 A.2d 509 (1968).

"An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. 1 Am.Jur. 316 § 2, 343 § 70; 1 Words & Phrases 620; Pittis v. Abrams, 129 N.Y.S.2d 216, 217 [1954]. A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. 1 Am.Jur. 942 § 13, 949; 44 Words & Phrases 138, 142." Bell & Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn.Sup. 296, 298, 182 A.2d 339 (1962).

We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics' liens in order to achieve the remedial purposes of the mechanics' lien statutes. "Provisions of mechanics' lien law should be liberally construed so as to reasonably and fairly implement its remedial intent." H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). We have also recognized, however, that such a policy has limitations: "[T]he principles that guide our interpretation of mechanic's lien legislation are well settled. Although this legislation 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.... Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, [141 Conn. 188, 191, 104 A.2d 545 (1954) ]; City Lumber Co. v. Borsuk, [131 Conn. 640, 645, 41 A.2d 775 (1945) ]." (Citations omitted.) Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550-51, 429 A.2d 796 (1980).

In accordance with this policy, our courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed. See, e.g., H & S Torrington Associates v. Lutz Engineering Co., supra, 185 Conn. at 555-56, 441 A.2d 171 (copy of certificate served on owner by a subcontractor failed to state its intent to file a lien); Morici v. Jarvie, 137 Conn. 97, 102, 75 A.2d 47 (1950) (misstatement of amount due); Pierce, Butler & Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934) (subcontractor mislabeled as contractor and agent); Burque v. Naugatuck Lumber Co., 113 Conn. 350, 353, 155 A. 414 (1931) (defect in description); Peck v. Brush, 89 Conn. 554, 556-57, 94 A. 981 (1915) (inclusion of extra land in certificate); Westland v. Goodman, 47 Conn. 83, 86 (1879) (erroneous date of completion of work). The defendant, however, has cited no Connecticut case in which a court has validated a certificate of mechanic's lien despite the clear absence of a necessary statutory element of the certificate, nor have we found such a case.

Three Connecticut cases lead us to conclude that the liens in this case are invalid. Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, is the closest on point. In that case, the Superior Court held that a certificate of mechanic's lien that was merely acknowledged, but not sworn to, was invalid. The only distinction between the present case and Bell & Zajicek, Inc., is the attempted validation of the certificate in this case by the testimony of the oath taker.

The case of Kelly v. Alling, 84 Conn. 487, 80 A. 782 (1911), is persuasive by analogy. In Kelly, General Statutes (1902 Rev.) § 4138 ⁵ allowed the defendant property owner credit for all the payments he may have made in good faith to an original contractor before receiving notice of a claim of lien by a subcontractor. We held that the notice referred to in § 4138 referred only to the statutory notice described in General Statutes (1902 Rev.) § 4137. ⁶ We concluded that oral notice and notice by letter were not proof that payments by the owner to the contractor, in accordance with the contract, were not made in good faith, and that the letter was properly excluded from evidence.

We reach back 169 years for the most cogent analogy. In Pendleton v. Button, 3 Conn. 406 (1820), the defendant proposed to prove that title to certain land was in one Stoddard, and to this end offered in evidence a deed that had never been acknowledged in writing, together with accompanying testimony that a parol acknowledgment was actually made. We stated: "This evidence was rejected; and most correctly. It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written witnessed, acknowledged, and recorded. Tit. 142, c. 1. s. 7. The acknowledgment, to be recorded, must necessarily, be in writing; and such is the invariable practice. To the record all men recur, for the purpose of ascertaining the title of lands; and to satisfy the enquiry, a written acknowledgment is indispensably necessary." (Emphasis in original.) Id., at 412.

We conclude that a certificate of mechanic's lien under General Statutes § 49-34 is sufficiently like a deed of land to make Pendleton dispositive of this case. Section 49-34(1) provides that the "certificate in writing ... shall be recorded by the town clerk with deeds of land...." Unlike the effect of a mere notice, as claimed by the defendant, a lien certificate may effect a transfer of land title by means of a foreclosure of the lien. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935) ("[i]n all essential respects the attributes of foreclosure of mortgages apply to mechanics' liens").

Moreover, our conclusion accords with common sense. "In construing a statute common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The defendant argues that the statute does not require that the swearing to the contents of the certificate be in writing. In considering a statute that authorizes a certificate of mechanic's lien in writing, however, we cannot ascribe to the legislature an intent that an essential part of this certificate need not be in writing. Such a certificate may take precedence over prior encumbrances and may furnish the basis for a foreclosure of the subject premises. General Statutes § 49-34 describes the contents of such a certificate with great detail. To validate a certificate without a written oath would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public. As the Supreme Judicial Court of Massachusetts said, in a case concerning a statutory lien arising out of labor or materials furnished in a public building project: "There are practical considerations of importance.... The sworn statement is designed in part to be the basis of action by others who are entitled to like relief and by public...