LLC v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 143)

The defendants, Thomaston Savings Bank and Chatham Lake one LLC, move to dismiss the amended complaint of the plaintiff, Probuild Company, LLC, on the ground that the court lacks subject matter jurisdiction over this action because there is no live case or controversy among the parties.   The court finds it has subject matter jurisdiction in this case and, therefore, denies the motion to dismiss.

Pursuant to General Statutes § 49–33(i), the plaintiff, a subcontractor, initiated this action seeking to foreclose a mechanic's lien against the defendants, the owner and morgagee of the property.  Section 49–33(a) authorizes a subcontractor to place a mechanic's lien on improved property to secure a debt for services it rendered or materials it furnished in connection with the improvement of such property.   See e.g. New England Saving Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611, 706 A.2d 465 (1998).   The statute also provides that “any mechanics lien may be foreclosed in the same manner as a mortgage” in order to collect the debt.  General Statutes § 49–33.

“The guidelines for interpreting mechanic's lien legislation are well established.   Although the mechanic's lien statute creates a statutory right in derogation of the common law;  ․ its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials ․” (Internal quotation marks and citations omitted.)  New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611, 706 A.2d 465 (1998).

Under General Statutes § 49–37(a), “[w]henever any mechanic's lien has been placed upon any real estate ․ the owner of that real estate, or any person interested in it, may make an application to any judge of the Superior Court that the lien be dissolved upon the substitution of a bond with surety ․” When the court orders the lien dissolved and a bond substituted, “after an action for the foreclosure of a lien has been commenced, the plaintiff in the foreclosure may amend his complaint, without costs, so as to make the action one upon the bond with which the plaintiff may join an action to recover upon his claim ․” (Emphasis added.)  Section 49–37(a) contemplates the continuing jurisdiction of the court, and the plaintiff's continued statutory standing upon substitution of the lien for a bond, by allowing the plaintiff to amend his complaint without costs to convert the action to an action on the bond.

After the commencement of the foreclosure action, the defendants exercised their statutory right to seek a motion for dissolution of the mechanic's lien upon the substitution of a bond under General Statutes § 49–37.   The court granted the motion to dissolve the lien upon the posting of a bond in the amount of $81,700.   After the bond was properly posted, the court ordered the lien released, and on September 10, 2012, the plaintiff recorded a release of mechanic's lien on the land records.   On November 1, 2012, the plaintiff filed an amended complaint against the defendants only and did not seek to cite into this action the principal and surety on the bond.¹  By way of relief, the amended complaint seeks “a foreclosure of Principal and surety's interest in the Bond substituted for the mechanics lien” and “an order of the court ordering the Principal and surety to pay to the Plaintiff the amount up to but not exceeding the amount of the bond.”   The plaintiff's amended complaint also seeks money damages, interest and costs including a reasonable attorneys fee.

The defendants have moved to dismiss the action claiming that as the result of the events subsequent to the filing of the original foreclosure action, including the substitution of the bond for the lien, dissolution of the mechanic's lien and filing of an amended complaint, there is no longer a live case or controversy.   The plaintiff's only remaining claim, the defendants assert, is an action on the bond against the principal and surety.   The defendants are not the principal or surety on the bond.   Thus, defendants claim this court lacks subject matter jurisdiction.

“Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong.”  (Internal quotation marks omitted.)  MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 389, 926 A.2d 1035 (2007).  “[E]very presumption in favoring jurisdiction should be indulged.”  Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009);  In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012);  Lostritto v. Community Action of New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004).   The judicial policy preference is to “bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”   (Internal quotations and citations omitted.)  In re Jose B., supra, 303 Conn. 569.

“Because courts—are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ․ Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant ․ As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter ․” (Citations omitted;  internal quotation marks omitted.)  Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 540, 568–69 (2004).”   Coalition for Justice in Education Funding v. Rell, 295 Conn. 240, 254 (2010);  State v. Nardini, 187 Conn. 109, 111–12, 445 A.2d 304 (1982).

Here the plaintiff had statutory standing to bring his foreclosure action under General Statutes § 49–33(i) and continuing statutory standing to proceed with the action after the lien was substituted for a bond and the lien dissolved under § 49–37a.  Electrical Contractors, Inc. v. Department of Education, 303 Conn. 402, 411, 35 A.2d 188 (2012) (“Standing is established by showing that the party claiming it is authorized by statute to bring suit ․”).

“The court's authority to act pursuant to a statute is different from its subject matter jurisdiction.   The power of the court to hear and determine which is implicit in jurisdiction is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.”  In re Jose B., 303 Conn. 569 (2012) (internal citations omitted).  “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.”  Id.

The court finds that under General Statutes 49–47, it has the authority and competence to decide this case.

The specific subject matter concept asserted by the defendants—lack of a live case or controversy—is generally known as mootness.  “The mootness doctrine is ․ founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue ․ This court recently reiterated that the standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ․ Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law.”  (Citations omitted.)   Lyon v. Jones, 291 Conn. 384, 394 (2009).

The court finds that there exists a live statutorily authorized controversy in this case—an action on the bond expressly authorized by General Statutes § 49–37(a).²  That the amended complaint fails to articulate a legally sufficient claim against the defendants or that others should be parties to this action, does not render this action moot and deprive the court of the authority and competence to hear it.   The failure to join a proper party to a lawsuit, even a party considered indispensable, does not constitute a subject matter defect.  Bauer v. Souto, 277 Conn. 829, 838–9, 896 A.2d 90 (2006).   The exclusive remedy for the nonjoinder of a party is a motion to strike.   Id. Similarly, to the extent that the plaintiff's amended complaint fails to state a sufficient cause of action against the defendants upon which relief may be granted, the defendants' remedy is also a motion to strike and not a motion to dismiss.  Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1990);  Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266 (2004).

Accordingly, the court finds that it has jurisdiction in this case and denies the motion to dismiss.

So ordered.

Cobb,J.

FOOTNOTES

FN1. After the motion to dismiss was filed, the plaintiff filed a motion to cite in the principal and surety and a second amended complaint (# 146), to which the defendants have objected.   That motion is not before the court and because a motion to dismiss claiming lack of subject matter jurisdiction has been filed, the court cannot take any action in this case it determines whether it has subject matter jurisdiction.  Dow & Condon, Inc v. Brookfield Development Corp., 266 Conn. 572, 578–79, 833 A.2d 908 (2003) (the court must resolve the issue of jurisdiction no matter in what form it is presented and fully resolve it before proceeding further in the case)..  FN1. After the motion to dismiss was filed, the plaintiff filed a motion to cite in the principal and surety and a second amended complaint (# 146), to which the defendants have objected.   That motion is not before the court and because a motion to dismiss claiming lack of subject matter jurisdiction has been filed, the court cannot take any action in this case it determines whether it has subject matter jurisdiction.  Dow & Condon, Inc v. Brookfield Development Corp., 266 Conn. 572, 578–79, 833 A.2d 908 (2003) (the court must resolve the issue of jurisdiction no matter in what form it is presented and fully resolve it before proceeding further in the case).

FN2. The Supreme Court has questioned, but not yet addressed, whether mootness “truly implicate[s] the court's subject matter jurisdiction.”   In Re Jose B., 303 Conn. 569, n.8..  FN2. The Supreme Court has questioned, but not yet addressed, whether mootness “truly implicate[s] the court's subject matter jurisdiction.”   In Re Jose B., 303 Conn. 569, n.8.

Cobb, Susan Quinn, J.