Haynes Materials Company v. Louise Clement et al. (2011)

Caption Date:

MEMORANDUM OF DECISION

The first count of this action is an action for foreclosure of a mechanics lien.   The defendant, Newtown Savings Bank (“Newtown”), the holder of the first mortgage on the property, is cited as a defendant in the case on the ground that the subsequently-recorded mechanics lien has priority over Newtown's mortgage.   Newtown has filed a motion to dismiss (# 102) the complaint on the ground that court has no jurisdiction to hear this foreclosure because it was not commenced, nor was the lis pendens recorded, within one year of the mechanics lien being recorded as is required by C.G.S. § 49-39 ¹ The plaintiff filed an objection, and the parties engaged in oral argument on January 24, 2011.   Because of the reasons set forth, the court agrees with Newtown and must grant the motion to dismiss.

The factual chronology can be summarized as follows.

July 30, 2009-The mechanics lien was filed with the Torrington Town Clerk.

July 29, 2010-The plaintiff's attorney placed the summons, complaint and lis pendens in the hands of FedEx for delivery to State Marshal, Suzann H. Corbet, together with a letter directing Marshal Corbet to file the lis pendens with the Torrington Town Clerk by the end of the day, Friday July 30, and to serve the lis pendens, summons and complaint on Louise Clement and Newtown Savings Bank.

July 30, 2010-The summons, complaint and lis pendens were delivered to the Marshal Corbet in New Milford by FedEx at 10:10 AM. The office of the Torrington Town Clerk closes at 12:30 PM every Friday and will not take any recording after 12:00 PM on Fridays.

August 2, 2010-Marshal Corbet filed the lis pendens with the Torrington Town Clerk at 1:51 PM and served the summons, complaint and lis pendens on Louise Clement.

August 3, 2010-The Marshal Corbet served the summons, complaint and lis pendens on Newtown.

This chronology makes clear that the plaintiff did not commence the action to foreclose the lien within one year from the date that the mechanics lien was recorded, nor did the plaintiff record the lis pendens within one year from the date the mechanics lien was recorded.   An action is commenced when service is made on the defendant.  Rocco v. Garrison, 268 Conn. 541, 549 (2004).   Service on the defendants was made on August 2 and August 3, 2010, both dates which are more than one year from the date the mechanics lien was recorded.   Failure to commence the action within one year from the date the mechanics lien was recorded deprives the court of jurisdiction to enter a foreclosure of the lien.   See, Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63 (1974).   Also, the court has no jurisdiction if the notice of lis pendens is not filed within one year from the filing of the mechanics lien.   H G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 432 (1992).

With respect to late service of the complaint, the plaintiff argues that it is entitled to take advantage of the 30-day grace period provided by C.G.S. § 52-593a.²  The summons, complaint and notice of lis pendens were delivered to Marshal Corbet by FedEx on July 30, 2010, the last day of the one-year period from the date the lien was recorded.³  Service was made on both defendants within thirty days thereafter.   Therefore, the court would retain jurisdiction if § 52-593a is applicable.   In opposition to that argument, Newtown points out that, unlike a statute of limitations, “ § 49-39 is not merely a limitation of the remedy, but is a limitation of the cause of action itself ․ In order for the party to foreclose the 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 was 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 (1992).  “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 the defendant and the liens of others who failed to commence any action of foreclosure within the time limited by statute, are no longer in force;  as liens they have ceased to exist.”  Presky v. Puglisi, 101 Conn. 658, 666 (1925).   The defendant argues that the plaintiff's mechanics lien ceased to exist on July 30, 2010 when no foreclosure action has been commenced, and that § 49-39 did not act to bring the lien back into existence on August 3, 2010 when service was completed.

The parties have not provided the court with any appellate authority on this point.   However, there is some Superior Court authority which holds that § 52-593a applies to actions to foreclose mechanics liens.   Grasso Paving & Landscaping, Inc. v. Pacific Development, Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 90-0108945 (February 14, 1991) [3 Conn. L. Rptr. 246];  Amsdem v. Barnini, Superior Court, Judicial District of Tolland, Docket No. 054003079 (May 16, 2007) [43 Conn. L. Rptr. 429].   Neither case contains any analysis.   Both simply assume that § 52-593a applies.   I conclude that § 52-593a does not apply to actions to foreclose mechanics liens because of the difference between a statute of limitations which merely cuts off a remedy which exists at common law, and a statute such as § 49-39 which creates a remedy for a specific period of time.  “The Statute of Limitations creates a defense to an action.   It does not erase the debt.”  Gianetti v. United Healthcare, 99 Conn.App. 136, 144 (2007).  “Where ․ a specific limitation is contained in the statute that creates the right of action and establishes the remedy, then the remedy exists only during the prescribed period and not thereafter.   This statute of limitations [three years for CUTPA ⁴ violation] is jurisdictional.”   (Citations omitted) Blinkoff v. O & G Industries, Inc., 113 Conn.App. 1, 9-10 (2009), certification denied, 291 Conn. 913.

C.G.S. § 49-39 is like CUTPA in that it creates a remedy unknown at common law.   It also places a time limitation for the exercise of the remedy created.   Once that limitation period expires the court has no jurisdiction over the remedy because it no longer exists.   For this reason, the grace period provided by C.G.S. § 52-593a is ineffective.   This is in contrast to the statute of limitations for a common law remedy which can be extended by § 52-593a because the jurisdiction of the court is not implicated.   For these reasons, § 52-593a did not act to validate the plaintiff's late service of the summons, complaint and notice of lis pendens.

Likewise, the plaintiff's failure to record the notice of lis pendens within one year from the filing of the mechanics lien creates a jurisdictional defect.  H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn.App. 426, 432 (1992).   The plaintiff seeks to avoid a dismissal on this ground by arguing that the Torrington Town Clerk was closed in the afternoon of the day Marshal Corbet received the paperwork.   The plaintiff cites Superior Court authority for the proposition that when the last day for filing a notice of lis pendens falls on a weekday when the town clerk is closed, the notice may be filed on the next day that the town clerk is open.   Amsden v. Barini, Superior Court judicial district of Tolland, Docket No. 054003079 (May 16, 2007) [43 Conn. L. Rptr. 429];  S.M. Berger, Inc. v. MCJ, LLC., Superior Court judicial district of Litchfield, Docket No. 106001507 (August 19, 2010) [50 Conn. L. Rptr. 514].   These cases, however, are easily distinguishable from this case.   Here, the Torrington Town Clerk was open on July 30, 2010, the last day of the one-year period from the date that the mechanics lien was filed.   Although the Town Clerk closed at 12:30 PM and would not accept any recording after 12:00 PM, it was open in the morning and available to accept filing up until noon.   The notice of lis pendens could have been filed during this time.   This is true even though the notice of lis pendens was not delivered to Marshal Corbet in New Milford until 10:10 AM on July 30, 2010.   The failure to file the notice of lis pendens in a timely fashion deprives the court of jurisdiction.

For the reasons given above, the motion to dismiss must be granted.

BY THE COURT

John W. Pickard, J.

FOOTNOTES

FN1. Section 49-39 provides in pertinent 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 ․ 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.”.  FN1. Section 49-39 provides in pertinent 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 ․ 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.”

FN2. Section 52-593a provides in pertinent part:  “a cause or right of action shall not be lost because of the passage of time limited by law within which the action may be brought, if process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.”.  FN2. Section 52-593a provides in pertinent part:  “a cause or right of action shall not be lost because of the passage of time limited by law within which the action may be brought, if process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.”

FN3. At the oral argument of this motion, the defendant made an argument that the one-year period expired on July 29, 2010 and that, consequently, delivery of the process to Marshal Corbet on July 30, 2010 was too late even if Section 52-593a applied.   The defendant cited the court to Specialty Interiors v. GGP-Brass Mill, Inc., Superior Court, judicial district of Waterbury, Docket No. 990150392 (October 29, 1999).   This argument was not made in the motion to dismiss or in the brief in support thereof.   As a result, the plaintiff was not prepared to respond to it.   In light of the failure to raise this argument in a timely fashion, I have not considered it..  FN3. At the oral argument of this motion, the defendant made an argument that the one-year period expired on July 29, 2010 and that, consequently, delivery of the process to Marshal Corbet on July 30, 2010 was too late even if Section 52-593a applied.   The defendant cited the court to Specialty Interiors v. GGP-Brass Mill, Inc., Superior Court, judicial district of Waterbury, Docket No. 990150392 (October 29, 1999).   This argument was not made in the motion to dismiss or in the brief in support thereof.   As a result, the plaintiff was not prepared to respond to it.   In light of the failure to raise this argument in a timely fashion, I have not considered it.

FN4. C.G.S. § 42a-110a et seq..  FN4. C.G.S. § 42a-110a et seq.

Pickard, John W., J.