521 A.2d 224
(5002)Appellate Court of Connecticut
BORDEN, DALY and BIELUCH, Js.
The plaintiff, on February 11, 1986, applied to the trial court in the Danbury judicial district to reduce the amount of a mechanic’s lien which had been filed by the defendant against land owned by the plaintiff. The defendant moved to dismiss that application on the ground that jurisdiction to hear such an application was lodged in the
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Stamford Norwalk judicial district where, on February 13, 1986, in response to the plaintiff’s complaint for breach of contract, the defendant had filed a counterclaim to foreclose the lien. The trial court denied the defendant’s motion to dismiss and, after an evidentiary hearing, rendered judgment reducing the amount of the lien. On the defendant’s appeal to this court, held that because the defendant’s counterclaim for foreclosure was filed after the plaintiff’s application to discharge or reduce the lien, the pendency of that counterclaim did not deprive the trial court of either jurisdiction or venue.
Submitted on briefs January 9, 1987
Decision released February 24, 1987
Application for discharge or reduction of a mechanic’s lien filed against certain of the plaintiff’s real property, brought to the Superior Court in the judicial district of Danbury, geographical area number three, where the court, Geen, J., denied the defendant’s motion to dismiss the application and rendered judgment reducing the amount of the mechanic’s lien, from which the defendant appealed to this court. No error.
Mark F. Katz filed a brief for the appellant (defendant).
William J. Hennessey, Jr., and Jevera N. Kaye filed a brief for the appellee (plaintiff).
BORDEN, J.
The defendant appeals from a judgment of the trial court, rendered in the Danbury judicial district, granting the plaintiff’s application to reduce the amount of the defendant’s mechanic’s lien filed on the plaintiff’s property located in Danbury. The sole issue on appeal is whether the court properly denied the defendant’s motion to dismiss the plaintiff’s application. We find no error.
The facts are undisputed. By a complaint dated January 10, 1986, and returnable on January 21, 1986, to the Stamford-Norwalk judicial district, the plaintiff sued the defendant for breach of a contract pursuant to which the defendant had agreed
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to perform excavation and construction work on the plaintiff’s property located in Danbury. Both the plaintiff and the defendant are corporations doing business in Stamford. On January 15, 1986, the defendant filed a mechanic’s lien in Danbury against the plaintiff’s property. On February 13, 1986, the defendant filed an answer to the plaintiff’s complaint in the Stamford action, and a counterclaim for foreclosure of its mechanic’s lien.
Meanwhile, on February 11, 1986, after the filing of the defendant’s mechanic’s lien but before the filing of its counterclaim for foreclosure of that lien, the plaintiff presented to the clerk of court for the Danbury judicial district an application to discharge or reduce the defendant’s mechanic’s lien pursuant to General Statutes 49-35a (a).[1] It is the court’s actions with respect to this application that gave rise to this appeal.
The Danbury clerk assigned the application for a hearing in early March, 1986. Prior to the hearing on the plaintiff’s application but after the filing of the defendant’s counterclaim for foreclosure of the lien in the Stamford action, the defendant in this case moved to dismiss the plaintiff’s application on the ground that the pending counterclaim in Stamford for foreclosure of the lien was a prior pending action and that “the Court is without jurisdiction to hear Plaintiff’s application other than in the original pending action now
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proceeding in the Judicial District of Stamford/Norwalk.” The court denied the motion to dismiss and, after an evidentiary hearing, granted the plaintiff’s application to reduce the defendant’s lien. The defendant appealed from the final judgment of the court reducing the lien. See General Statutes 49-35c (a).
The defendant does not challenge the action of the court in reducing the lien. The defendant claims only that the court in Danbury erred in hearing the plaintiff’s application because “jurisdiction” to hear such an application was lodged solely in the Stamford-Norwalk judicial district, where the defendant’s counterclaim for foreclosure of the lien was pending at the time of the hearing. The defendant argues that its counterclaim for foreclosure of the mechanic’s lien was properly filed in the Stamford-Norwalk judicial district pursuant to General Statutes 49-39,[2] and that General Statutes 51-345 (b)[3]
does not apply to a counterclaim to foreclose a mechanic’s lien. Therefore, the defendant argues, the plaintiff’s application could be heard only in the Stamford-Norwalk judicial district because at the time of the application and hearing thereon an action for the foreclosure of the lien was pending in that court. We disagree.
We need not decide in this case whether there is a conflict between General Statutes 51-345 (b); see footnote 3, supra; and General Statutes 49-39; see
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footnote 2, supra; where foreclosure of a mechanic’s lien is sought by way of a counterclaim, and, if so, which would prevail. Nor need we decide whether the judicial forum for the foreclosure of a mechanic’s lien is, as the defendant claims, a matter of subject matter jurisdiction or, as the plaintiff claims, a matter of venue.
Assuming arguendo that the defendant’s counter-claim for foreclosure of the lien was properly filed in Stamford, and that the proper location of such a foreclosure implicates jurisdiction rather than venue, we conclude nonetheless that the trial court in this case correctly interpreted General Statutes 49-35a (a). See footnote 1, supra. This proceeding does not involve the foreclosure of a mechanic’s lien. It involves an application to discharge or reduce such a lien.
On February 11, 1986, when the plaintiff made its application, there was no counterclaim pending for foreclosure of the mechanic’s lien. That counterclaim was not filed until February 13, 1986. On February 11, 1986, there was, therefore, “no action to foreclose the lien . . . then pending before any court . . . .” General Statutes 49-35a (a). On that date the plaintiff did precisely what General Statutes 49-35a (a) permitted, namely, to “make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345 . . . .” Since the lien was filed in Danbury against property located there, the Danbury judicial district was a “judicial district in which the lien may be foreclosed under the provisions of section 51-345.” General Statutes 49-35a (a). Thus, the plaintiff’s application was brought to the proper location. The defendant’s subsequent filing of its counterclaim in Stamford could not deprive the Danbury
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court of either venue or jurisdiction over the plaintiff’s properly filed application.[4]
There is no error.
In this opinion the other judges concurred.