LOUIS GHERLONE EXCAVATING v. McLEAN CONST.

• Decision Date: 10 May 2005
• Docket Number: No. 25430.,25430.
• Citation: LOUIS GHERLONE EXCAVATING v. McLEAN CONST., 871 A.2d 1057, 88 Conn.App. 775 (Conn. App. 2005)
• Court: Connecticut Court of Appeals
• Parties: LOUIS GHERLONE EXCAVATING, INC. v. McLEAN CONSTRUCTION COMPANY, INC., et al.

871 A.2d 1057

88 Conn.App. 775

LOUIS GHERLONE EXCAVATING, INC. v. McLEAN CONSTRUCTION COMPANY, INC., et al.

No. 25430.

Appellate Court of Connecticut.

Argued January 18, 2005.

Decided May 10, 2005.

Alfred J. Zullo, East Haven, for the appellant (plaintiff).

Michael C. Jankovsky, Fairfield, for the appellee (defendant North Main Bridge, LLC).

John Wayne Fox and Patricia M. Gaug, Stamford, filed a brief for the appellee (defendant JP Morgan Chase Bank, N.A.).

DRANGINIS, BISHOP and DiPENTIMA, Js.

DRANGINIS, J.

This appeal concerns the judgment of dismissal rendered in an action to foreclose a mechanic's lien. On appeal, the plaintiff, Louis Gherlone Excavating, Inc., claims that the trial court improperly dismissed the action by concluding that the mechanic's lien was defective on its face because there was no verification of the truth of the statements contained in it, as required by General Statutes § 49-34.¹ Although a trial court properly may conclude that a plaintiff cannot prevail in an action to foreclose a mechanic's lien where the certificate required by § 49-34 does not contain a verification, the court has subject matter jurisdiction to decide whether the lien is valid. Although we agree that the mechanic's lien was defective on its face, the court's judgment of dismissal is improper. Nonetheless, we conclude that judgment should be rendered in favor of the defendants.²

The material facts and procedural history do not appear to be in dispute. In January, 2004, the plaintiff commenced this action against several defendants³ to foreclose a mechanic's lien on premises known as 990-992 North Avenue, Bridgeport (premises). The mechanic's lien was attached to the complaint as exhibit B. In response, the defendants North Main Bridge, LLC, and JP Morgan Chase Bank, N.A., filed motions to dismiss the action because the mechanic's lien failed to indicate that the plaintiff's agent had verified, under oath, the truth of the statements contained in the lien, as required by § 49-34.⁴ The plaintiff filed objections to the motions to dismiss to which it attached an affidavit signed by Louis Gherlone, the plaintiff's president. Gherlone attested to the manner in which he signed the mechanic's lien, including that he swore that he was familiar with the facts underlying the lien and that the facts stated in the lien were true.⁵ Following a hearing, the court dismissed the action, stating: "Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 577, 620 A.2d 118 (1993), requires that a document `sworn to' must contain language that the facts contained in it are true." The plaintiff appealed.

I

On appeal, the plaintiff raised three claims, all of which concern the validity of the mechanic's lien with respect to § 49-34 and Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. at 577, 620 A.2d 118. The defendants' counterstatements of the issues do not raise other issues. In other words, none of the parties questioned the propriety of the court's having dismissed the action, rather than exercising its jurisdiction over the matter to rule on the merits of the plaintiff's claim. In support of their motions to dismiss the plaintiff's foreclosure action, the defendants cited one sentence from H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 601 A.2d 1040 (1992), but without noting the distinguishing fact of that case. H.G. Bass Associates, Inc., does not apply to this action because that case is controlled by General Statutes § 49-39.⁶ The statutory basis of the defendants' motions to dismiss is § 49-34. Aside from setting forth the applicable standard of review, the parties did not address subject matter jurisdiction in their briefs on appeal.

"[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Emphasis added; internal quotation marks omitted.) Beneduci v. Valadares, 73 Conn.App. 795, 805, 812 A.2d 41 (2002). "Any defendant, wishing to contest the court's jurisdiction ... must do so by filing a motion to dismiss...." Practice Book § 10-30. "The motion to dismiss shall be used to assert (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...." Practice Book § 10-31(a). "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.... [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss [is] de novo." (Internal quotation marks omitted.) State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001).

"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." (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). "Any mechanic's lien may be foreclosed in the same manner as a mortgage." General Statutes § 49-33(i). In filing their motions to dismiss, the defendants did not question the authority of the court to adjudicate the validity of the mechanic's lien; rather, they asked the court to determine the validity of the lien.⁷

The defendants were not without a means to raise the validity of the mechanic's lien prior to trial. "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 mortgage, the note or both." (Emphasis added; internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged...." Practice Book § 10-50. After filing an answer and special defense, the defendants may move for summary judgment. See Practice Book § 17-44.

Although the court improperly dismissed the action because the court had subject matter jurisdiction, we decline to remand the case for further proceedings for reasons of judicial economy. See New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 338 n. 9, 857 A.2d 348 (2004) (judicial economy militates strongly in favor of resolution of issue that is matter of law); State v. Brown, 242 Conn. 445, 447, 700 A.2d 1089 (1997); State v. Angell, 237 Conn. 321, 330, 677 A.2d 912 (1996). In all likelihood, if the matter were remanded, the defendants would answer the complaint and allege a special defense that the lien is invalid. The defendants thereafter would file motions for summary judgment. "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law...." (Citations omitted; internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn.App. 791, 800-801, 732 A.2d 207 (1999). None of the facts at issue would change on remand. On a second appeal, we again would be faced with the substantive question regarding the validity of the mechanic's lien, which is a question of law. For reasons of judicial economy, therefore, we will resolve the legal question concerning the validity of the mechanic's lien.

II

The substance of the plaintiff's claim is that the court improperly construed § 49-34 with respect to the mechanic's lien concerning the premises and concluded that Gherlone had to state in writing on the mechanic's lien certificate that the facts recited therein were true. The plaintiff also argues that § 49-34 is to be construed liberally. The issue presents a question of statutory construction. We, however, do not begin on a clean page, as a fair amount of ink has been used to construe, repeatedly, the very language at issue here. See First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 646 A.2d 812 (1994); Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 563, 620 A.2d 118; J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989); Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, 23 Conn.Supp. 296, 182 A.2d 339. Each of these cases held, under facts similar to those presented here, that the words "sworn to" imply that the subscriber shall declare upon oath the truth of the statement to which her or his name is subscribed.

In J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. at 512, 555 A.2d 990, the defendant argued, as the plaintiff does here, that § 49-34(1)(C) "requires only a signing under oath,...