2004 Ct. Sup. 4314
No. CV 0404619Connecticut Superior Court, Judicial District of Fairfield at Bridgeport
March 22, 2004
MEMORANDUM OF DECISION RE (#104) DEFENDANTS’ MOTION TO STRIKE
DOHERTY, JUDGE.
This is an action for the foreclosure of a mechanic’s lien, for immediate possession of the liened premises, for an order of ejectment and for attorneys fees. The mechanic’s lien was filed on the subject property to secure a debt of $2,246.35 which the plaintiff claims is owed to it by the defendants for services performed by the plaintiff related to the removal and disposal of two 550 gallon underground storage tanks pursuant to a written contract.
The defendants have filed a motion to strike the complaint for the reason that the mechanic’s lien in question does not contain an oath and, therefore, does not comply with the statutory requirements of Section 49-34, Connecticut General Statutes.
The plaintiff has objected to the relief sought in the motion for the reason that by its express terms, the mechanic’s lien states that the signature on the lien, “being duly sworn” deposed and said that the facts contained in it were true and correct. Consequently, the certificate of mechanic’s lien may be classified as a verification, thus meeting the requirement of Section 49-34(1)(c).
The parties appeared through counsel and the motion was argued to the court which reserved decision.
“[A] motion to strike challenges the legal sufficiency of a pleading . . .” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212 (2000). The role of the court is to “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” Pamela B. v. Ment, 244 Conn. 296, 308 (1998). “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily CT Page 4315 implied from the allegations are taken as admitted.” Doe v. Yale University, 252 Conn. 641, 667 (2000). “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff.” Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). “[I]t does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” Id., 588. “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71, 709 A.2d 558 (1999).
General Statutes § 49-34(1)(C) states that a mechanic’s lien must be “subscribed and sworn to by the claimant.” In an opinion explaining the language in § 49-34(1)(C), the Supreme Court held that “[a] requirement that a document be `sworn to’ contemplates the execution of an affidavit that the facts contained in it are true.” (Internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 577, 620 A.2d 118 (1993), citing J.C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 513-14, 555 A.2d 990
(1989). Specifically, “the term `sworn to’ implies that the subscriber shall have declared upon oath the truth of the statement to which his name is subscribed, and a certificate which merely recites that the claimant `acknowledges’ execution of the lien is insufficient.” (Internal quotation marks omitted.)Bell Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn. Sup. 296, 299, 182 A.2d 339 (1962). The Court has held, therefore, “that the mechanic’s lien statute requires the performance or execution of an oath swearing that the facts contained in the document are true.” Red Rooster Construction Co. v. River Associates, Inc., supra, 210 Conn. 577-78.
In J C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 514, the court described the documents that will satisfy § 49-34(1)(C) by explaining that “[a]n acknowledgment is a verification of the fact of the execution of the instrument but not of its contents . . . 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.” (Citations omitted; emphasis added.) For purposes of § 49-34(1)(C), therefore, “a certificate of mechanic’s lien that was merely acknowledged, but not sworn to, [is] invalid.” Id., 515; see also Red Rooster Construction Co. CT Page 4316 v. River Associates, Inc., supra, 224 Conn. 579 (finding the mechanic’s lien to be invalid “[i]n light of the fact that (1) an oral oath was not administered, [and] (2) [the plaintiff’s] president did not sign a statement swearing to the truth of the facts contained in the certificate . . .”).
The court in Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 579, found that the mechanic’s lien at issue did not comply with the requirements of § 49-34(1)(C) because the affiant merely signed a certificate containing a statement by the notary that the claimant had appeared and sworn to the accuracy of the facts contained therein. The court emphasized that the president’s signature did not appear subsequent to any passage in which the president, as affiant, stated it was his solemn oath that the facts contained in the certificate were true. Id.
Similarly, the court in J.C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 518, found the mechanic’s lien to be invalid due to the absence of a written oath in the certificate that the facts had been sworn to by the signor.
Unlike the affiants in Red Rooster and J.C. Penney, David Sponelli, the affiant acting on behalf of Absolute Tank Removal, LLC, states in the body of the plaintiff’s mechanic’s lien that he “does hereby swear under oath and subject to penalties for perjury, that in accordance with a certain contract between ABSOLUTE TANK REMOVAL, LLC and Ed Stevenson, representative for Shirley Nurse the predecessor in interest to Adell J. Bryan, of the City of Bridgeport and State of Connecticut, [Absolute Tank Removal, LLC] claims a MECHANIC’S LIEN on the property described in Exhibit A attached hereto.”
Additionally, the mechanic’s lien contains a passage prior to David Sponelli’s signature that David Sponelli, “being duly sworn [and] deposed,” states that the facts contained in the certificate of mechanic’s lien are “true and correct.”
The court finds that the certificate of mechanic’s lien in the present case was sworn to by a member of the plaintiff and factually verified by that member as to its facts and contents within the body of the certificate. The certificate of mechanic’s lien qualifies as a verification under the language of J.C. Penney, thereby satisfying the requirements set forth in §49-34(1)(C). CT Page 4317
Accordingly, the defendant’s motion to strike is hereby denied.
By the Court,
Joseph W. Doherty, Judge CT Page 4318