LaMetta & Sons, Inc. v. Heather Bliss et al. (2011)

Memorandum of Decision on Motion to Discharge or Reduce Mechanic's Lien (No. 175)

In this foreclosure case the defendant Baum Capital Investments, Inc. (“Baum”) has moved to dissolve or reduce a mechanic's lien against the property filed by the plaintiff Lametta & Sons, Inc., which is claimed to be prior in right to the Baum mortgage.   The matter appeared on the foreclosure short calendar of August 22, 2011, and the court heard evidence on September 28, 2011.

The plaintiff presented the testimony of Mr. Kenneth LaMetta, a principal of the plaintiff corporation.   The defendant Baum presented no contrary evidence.   Based on the evidence, the court finds probable cause to sustain the plaintiff's mechanic's lien in the amount of $99,772.00.   Accordingly, the amount of the plaintiff's mechanic's lien is ordered to be reduced from $106,210.00 to $99,772.00.

At the close of evidence defendant Baum Capital raised the issue of inadequate or improper service of the plaintiff's mechanic's lien upon the owner of the liened property, the defendant Heather Bliss.   There is a legend on the Certificate of Mechanic's Lien and Notice (Pl.Ex. 10) by State Marshal Kevin McNeill attesting that he filed the original mechanics lien at the office of the Town Clerk of Westport on December 26, 2008 and thereafter on that date ․ made service upon the within named Defendants Heather Bliss By leaving a true and attested copy of the recorded Mechanics Lien with my doings thereon endorsed, at the usual place of abode of Heather Bliss 123 Murray St. Norwalk CT (Address confirmed by husband of defendant).”   Plaintiff has submitted a further detailed affidavit by Marshal McNeill dated October 24, 2011 in which he attests to personal knowledge that Heather Bliss was living at 123 Murray Street Norwalk, Connecticut on December 26, 2008, from his previous experience in having served numerous lawsuits upon her at that address, and from information given by her husband Bill Trudeau, who lived with her at that address.   The court finds that the liened property, owned by the defendant Heather Bliss is located at 9 Fragrent Pines Court in the Town of Westport.   The court further finds that on December 26, 2008 the usual place of abode of defendant Heather Bliss was at 123 Murray Street, Norwalk, Connecticut.

The statutory provisions governing service of a Certificate of Mechanic's Lien are set forth in Conn. Gen.Stat. § 49–35(a).¹

The notice shall be served on the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved ․ by any indifferent person, state marshal, or other proper officer, by leaving with such owner or original contractor or at such owner's or the original contractor's usual place of abode a true and attested copy thereof.   If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides.

It is undisputed that the state marshal served defendant Heather Bliss by leaving a copy at her abode in Norwalk, and did not mail or attempt to mail a copy of the certificate to her at that address or any other address.   Defendant Baum contends, therefore, that the service upon her was defective under § 49–35(a) because the property and the defendant Bliss's residence were not in the same town, and the statute in that event requires service by registered certified mail only.   The court disagrees.   When the liened property and the address of the owner are in the same town, the statute provides that service “shall” be by abode service.   But when, as here, the liened property and the owner's residence are not in the same town, the statute provides that service “may be” by registered or certified mail.

As stated by Judge Booth in adjudicating this exact issue in TMC Services, Inc. v. Haines, Superior Court, Judicial District of Windham, Docket No. CV07–50013695 (February 6, 2008, Booth, J.), 2008 WL 731963 [45 Conn. L. Rptr. 130], quoting from Robinson v. Robinson, 86 Conn.App. 719, 725 (2004),

In the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language ․ General Statutes § 1–1(a).   Our Supreme Court has consistently held that may is directory rather than mandatory ․ The word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a demand.   Rather the word, generally imports permissive conduct and the conferral of discretion ․ The use of the word shall by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive ․ The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings ․ and that it intended the terms to have different meanings.

(Internal quotation marks omitted;  emphasis in original.)  2008 WL 731963 at *5.

Applying those principles of statutory construction the Haines court concluded that § 49–35(a) cannot be read as mandating only certified mail service for out of town property owners, but rather created an “option” for certified mail service as a convenient alternative to personal service.   The abode service of the certificate made upon the owner Mr. Haines by leaving it at his address outside the town of Killingly where the liened property was located was therfore upheld.  Id. *6. The court concurs with that reasoning and that result, and holds that abode service on the defendant Owner Heather Bliss at her residence in Norwalk was made in accordance with § 49–35(a) and was not defective or improper service.

Defendant Baum's attempt to distinguish Haines because there was evidence in that case that the owner had actual notice of the action is unavailing.   In this case, defendant Heather Bliss has not appeared, but has not been defaulted for failure to appear.   Although service of process must be effectuated in a way reasonably calculated to provide actual notice of the proceeding, the lack of actual notice is “significant, but not conclusive.”  Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 861–62 (2006), cert. granted, 282 Conn. 901 (2007).

Order

The amount of the plaintiff's mechanic's lien is ordered to be reduced from $106,210.00 to $99,772.00.   The service of the Certificate of Mechanic's Lien upon the defendant Heather Bliss on December 26, 2008 was not defective.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Section 49–35a itself applies to service of a Notice of Intent to File Mechanic's Lien, but the § 49–35 procedures for service of process are incorporated by reference in § 49–34 for service of a Certificate of Mechanic's Lien upon the owner of the property liened..  FN1. Section 49–35a itself applies to service of a Notice of Intent to File Mechanic's Lien, but the § 49–35 procedures for service of process are incorporated by reference in § 49–34 for service of a Certificate of Mechanic's Lien upon the owner of the property liened.

Jennings, Alfred J., J.T.R.