author: Borden, J.

text:
    Red Rooster Construction Company v. River Associates, Inc., et al.
    (14403)
    Peters, C. J., Callahan, Borden, Katz and P. X. Hennessy, Js.

      Argued November 4, 1992
    decision released February 9, 1993

      William J. Egan, with whom, on the brief, was Carol A. Fantozzi, for the appellant (plaintiff).

      Geoffrey A. Hecht, with whom, on the brief, were Bernard J. Virshup, Milton I. Caplan and John R. Scanlon, for the appellees (defendant Connecticut Savings Bank et al.).
   Borden, J.

This appeal arises from an action brought by the plaintiff, Red Rooster Construction Company (Red Rooster), to foreclose a mechanic’s lien on the property of the defendant River Associates, Inc. The plaintiff appeals from the judgment of the trial court rendered in favor of the defendants River Associates, Inc. (River Associates), Connecticut Savings Bank (bank), and Connecticut Attorney’s Title Insurance Company (title company). The trial court concluded that the plaintiff’s mechanic’s lien was invalid.

Red Rooster claims that the trial court improperly concluded that: (1) the bank, as a mortgagee of the property, was an owner of the property pursuant to General Statutes § 49-34 and was thereby entitled to notice of the filing of the lien; (2) there was no evidence that Red Rooster had recorded a notice of lis pendens within the one year requirement of General Statutes § 49-39; and (3) the mechanic’s lien certificate had not been sworn to within the meaning of § 49-34. We agree with Red Rooster regarding its first and second claims but disagree with its third claim. Consequently, we affirm the judgment of the trial court.

The relevant facts are as follows. River Associates was the record owner of real property located in New Haven. River Associates entered into a contract with Red Rooster in which Red Rooster agreed, for the contract price of $3,376,985.14, to construct condominium units and commercial space on that property. Construction commenced on September 30, 1987.

On August 23, 1989, River Associates ordered Red Rooster to stop working because River Associates did not have sufficient capital to pay for the completion of the project. As of that date, River Associates owed Red Rooster $258,402.36 for work already completed. On September 25,1989, Red Rooster filed a certificate of mechanic’s lien on the land records to secure its claim. Red Rooster served a copy of the certificate on River Associates but did not serve a copy on the bank, an encumbrancer of the property by virtue of a mortgage given to the bank by River Associates and recorded on the land records on February 4, 1988.

On October 16,1989, Red Rooster filed this complaint seeking to foreclose its mechanic’s lien. The complaint named River Associates and the bank as defendants. On the same date, Red Rooster recorded a notice of lis pendens on the land records and served River Associates and the bank with a copy of the complaint, the certificate of mechanic’s lien, and the notice of lis pendens. Pursuant to General Statutes § 49-37 (a), the lien was released upon substitution of a bond with the bank as principal and the title company as surety. The complaint was then amended to reflect the substitution of the bond and the addition of the title company as a defendant to the action. The liability of the bank and the title company, however, continued to depend on the validity of the mechanic’s lien. See Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 7, 372 A.2d 123 (1976).

After a court trial, the trial court requested the parties to file posttrial memoranda. Thereafter, having agreed with the claims asserted by the defendants in their posttrial briefs, the trial court concluded that Red Rooster’s mechanic’s lien was invalid because: (1) the bank, as a mortgagee of the property, was an “owner” of the property within the meaning of § 49-34, and was thereby entitled to notice of the filing of the lien; (2) there was no evidence that Red Rooster had recorded a notice of lis pendens within the one year requirement of § 49-39; and (3) the mechanic’s lien was not sworn to by Red Rooster within the meaning of § 49-34. This appeal followed.

I

Red Rooster first claims that the trial court improperly concluded that the bank, as a mortgagee of the property, was an owner of the property within the meaning of § 49-34 and was thereby entitled to notice of the filing of the lien. We agree.

Section 49-34 provides that a mechanic’s lien is not valid unless the person performing the services or furnishing the materials serves a true and attested copy of the certificate of lien on the owner of the property within thirty days after filing the lien. See footnote 2. The issue in this case, therefore, is whether a mortgagee is an owner for the purposes of the statute and is thereby entitled to notice of the filing of the lien.

Connecticut adheres to the title theory of mortgages. “It is undisputed that a mortgagee in Connecticut, both by common-law rule and by statute, is deemed to have taken legal title upon the execution of a mortgage on real property. General Statutes § 47-36h; State v. Stonybrook, Inc., 149 Conn. 492, 496, 181 A.2d 601, cert. denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962); Leonard v. Bailwitz, 148 Conn. 8, 12, 166 A.2d 451 (1960); City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935); Hartford Realization Co. v. Travelers Ins. Co., 117 Conn. 218, 224, 167 A. 728 (1933); Desiderio v. Iadonisi, 115 Conn. 652, 654, 163 A. 254 (1932); McKelvey v. Creevey, 72 Conn. 464, 467, 45 A. 4 (1900); Chamberlain v. Thompson, 10 Conn. 243, 251 (1834).” Conference Center Ltd. v. TRC, 189 Conn. 212, 218, 455 A.2d 857 (1983). At the same time, however, we have recognized that the law of mortgages is built primarily on a series of legal fictions “as a convenient means of defining the various estates to which conveyances may give rise.” Ensign v. Batterson, 68 Conn. 298, 309, 36 A. 51 (1896).

Despite our title theory of mortgages, “[i]n substance and effect . . . and except for a very limited purpose, the mortgage is regarded as mere security . . . and the mortgagor is for most purposes regarded as the sole owner of the land . . . .” McKelvey v. Creevey, supra, 466-67. The mortgagee “has title and ownership enough to make his security available, but for substantially all other purposes he is not regarded as owner, but the mortgagor is so regarded, always subject of course to the mortgage.” Id., 468.

In light of our long use of the term owner to mean the mortgagor; see, e.g., State v. Stonybrook, Inc., supra; Leonard v. Bailwitz, supra; Waterbury Savings Bank v. Lawler, 46 Conn. 243, 245 (1878) (“the law is well settled that, except as between the immediate parties, the mortgagor before foreclosure is the owner of the property . . . while the interest of the mortgagee is mere personal estate”); Mills v. Shepard, 30 Conn. 98, 101 (1861); Savage v. Dooley, 28 Conn. 411, 413 (1859); Porter v. Seeley, 13 Conn. 564, 571 (1840); we are not persuaded that the legislature intended the term “owner” in § 49-34 to mean the mortgagee. A long-standing rule of statutory construction is that if a statute “makes use of words [that] have an accepted meaning at the common law they ought, in the absence of other controlling reasons, to be expounded and received with that meaning.” Faulkner v. Solazzi, 79 Conn. 541, 546, 65 A. 947 (1907); see also, e.g., Seaman v. Climate Control Corporation, 181 Conn. 592, 603, 436 A.2d 271 (1980).

Moreover, to deviate from a construction of the statute that accords the term “owner” its commonly approved usage would create an unnecessary conflict within the statutory scheme. A court should interpret a statutory scheme as a whole with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. See, e.g., Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). General Statutes § 49-33 (a) provides that a person is entitled to a mechanic’s lien on a property only if the claim to payment arises by virtue of an agreement with, or consent by, the owner of the land. A mortgagee, however, ordinarily does not have the power to subject the property to claims that may give rise to a mechanic’s lien, at least before the mortgagee takes possession of the property upon a default of the underlying obligation. The use of the term “owner” in § 49-33 (a) indicates, therefore, that a mortgagee is not an owner of the property. As a result, we decline to read the legislature’s use of “owner” in § 49-34 differently from its meaning in related sections. See, e.g., Mashantucket Pequot Tribe v. Connecticut, 737 F. Sup. 169, 173 (D. Conn.), aff’d, 913 F.2d 1024 (2d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 1620, 113 L. Ed. 2d 717 (1991).

The defendants rely on the canon of statutory construction that a court should avoid a statutory interpretation that places a statute in constitutional jeopardy. See, e.g., In re Valerie D., 223 Conn. 492, 514, 613 A.2d 748 (1992). Specifically, the defendants argue that, because the mortgagee has an interest in the property, the mortgagee is constitutionally entitled to notice of the filing of the lien particularly if, as in this case, the mechanic’s lien would take priority over the mortgagee’s interest. Consequently, the defendants argue, this canon compels the conclusion that the legislature intended the term “owner” to include the mortgagee. We are not persuaded.

The defendants have not cited a single appellate decision from any state, nor do we know of any, that has held a mechanic’s lien statute unconstitutional for failing to provide a mortgagee with notice of the filing of the lien. Although we generally seek to avoid a construction of a statute that places it in constitutional jeopardy, a party seeking to invoke this rule must raise, at the least, a plausible constitutional claim. The defendants’ argument does not raise such a claim.

The constitutional defect alleged by the defendants sweeps so broadly that it would necessarily compel a conclusion that those entitled to notice would include not only a mortgagee but also every other encumbrancer whose interest might be affected by the filing of the lien. Absent more authority and analysis than the defendants have provided, we are not inclined to impose such a constitutional requirement, nor have the defendants advanced any argument why a mortgagee’s interest is somehow constitutionally superior to that of other lien creditors, such as judicial lienors.

Furthermore, the United States Supreme Court has summarily affirmed a federal district court’s conclusion that a mechanic’s lien statute that did not provide for notice to the owner was constitutional. Spielman-Fond, Inc. v. Hanson’s, Inc., 379 F. Sup. 997, 999 (D. Ariz. 1973), aff'd, 417 U.S. 901, 94 S. Ct. 2596, 41 L. Ed. 2d 208 (1974). Although not necessarily entitled to full precedential value; see Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2113 n.4, 115 L. Ed. 2d 1 (1991); the court in Connecticut v. Doehr, supra, recognized its summary affirmance in Spielman-Fond, Inc., and stated that mechanic’s lien statutes serve to protect creditors’ preexisting interests in the property at issue. In a concurring opinion, Chief Justice Rehnquist expanded upon the court’s discussion of the purpose of mechanic’s lien statutes: “Materialman’s and mechanic’s lien statutes award an interest in real property to workers who have contributed their labor, and to suppliers who have furnished material, for the improvement of real property. Since neither the labor nor the material can be reclaimed once it has become a part of the realty, this is the only method by which workmen or small businessmen who have contributed to the improvement of property may be given a remedy against a property owner who has defaulted on his promise to pay for the labor and the materials. To require any sort of a contested court hearing . . . would largely defeat the purpose of these statutes.” Id., 2121-22.

A rule requiring notice to all subsequent encumbrancers would defeat the important purpose of mechanic’s lien statutes to provide an inexpensive and simple method for material suppliers and contractors to secure the value of the services or materials that they have added to the property. If notice to all encumbrancers were required, a mechanic’s lienor would be required to incur the expense of hiring a lawyer to search the land records and to provide legal notice to all those claiming an interest in the property. We can divine no constitutional command compelling such an onerous rule, nor do we choose to adopt an interpretation of § 49-34 that would undermine the very purpose of the mechanic’s lien statute.

II

Red Rooster next claims that the trial court improperly concluded that there was no evidence that it had recorded a notice of lis pendens within the one year requirement of § 49-39, and that the lien was therefore invalid. We conclude that the trial court abused its discretion by refusing to open the judgment to consider whether Red Rooster had timely recorded the lis pendens.

After the close of evidence, the trial court directed the parties to file posttrial memoranda. In their memorandum, the defendants claimed for the first time that the lien was invalid because Red Rooster had not pleaded or offered any evidence at trial that it had filed a notice of lis pendens on the land records within one year of the filing of the mechanic’s lien. In a written response to this claim, Red Rooster submitted a copy of the sheriff’s return of the lis pendens that demonstrated that a notice of the lis pendens had been recorded and served on all of the defendants. The record also contained a copy of the lis pendens and sheriffs return. Red Rooster also argued, in response to the defendants’ claim, that it had no obligation to plead and prove compliance with the filing requirement of § 49-39. The defendants did not assert in the trial court, nor have they asserted on appeal, that the sheriff’s return is inaccurate or that a lis pendens had not been filed on the land records.

The trial court found that there was no evidence that Red Rooster had filed a lis pendens on the land records within the one year period. The trial court stated thatRed Rooster’s “submission . . . does not constitute evidence of the filing” and that the plaintiff was obligated to establish compliance with § 49-39. Consequently, the trial court concluded that the lien was invalid and should be discharged. After the trial court had rendered judgment for the defendants, Red Rooster moved to open the judgment. In a hearing on that motion, Red Rooster again directed the trial court to the lis pendens and the sheriff’s return in the record. The trial court, however, refused to open the judgment.

“‘A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159 (1981)]. Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). . . .’ (Internal quotation marks omitted.)” Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992). “Such discretion, however, imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” Ducci Electrical Contractors, Inc. v. Department of Transportation, 28 Conn. App. 175, 182, 611 A.2d 891 (1992).

Even if we were to agree with the trial court that Red Rooster had the obligation to plead and prove compliance with § 49-39; but see Swerdloff v. AEG Design/Build, Inc., 209 Conn. 185, 187-89, 550 A.2d 306 (1988); Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169, 171-72, 469 A.2d 419 (1984); we conclude that the trial court abused its discretion in refusing to open the judgment. Prior to the trial court’s decision, but after the close of evidence, Red Rooster submitted a copy of the lis pendens and its sheriff’s return that demonstrated that the lis pendens had been recorded on the land records. The defendants did not argue that the lis pendens was inaccurately or untimely recorded. In considering the defendants’ claim that there was no evidence that a lis pendens had been recorded in accordance with § 49-39, the trial court could have compared Red Rooster’s submission to the same documents contained in the trial court file.

Following the court’s judgment for the defendants, Red Rooster, in its motion to open, again directed the trial court’s attention to the court’s file. Accordingly, the trial court could simply have referred to the file in order to determine the validity of the plaintiffs assertion. If the trial court were concerned with the accuracy of the documents in the file, then it could have asked the defendants whether they disputed the accuracy of the sheriff’s return. Under these circumstances, the trial court did not exercise its discretion in conformity with the spirit of the law or the notion of substantial justice. We conclude, therefore, that the trial court abused its discretion in refusing to open the judgment to consider the plaintiff’s evidence that the lis pendens had been filed in conformity with § 49-39. We further conclude, absent any claim to the contrary by the defendants, that Red Rooster complied with § 49-39 in that regard.

III

Red Rooster finally claims that the trial court improperly concluded that the mechanic’s lien had not been sworn to by Red Rooster within the meaning of § 49-34. We disagree.

The following facts are relevant to this claim. Red Rooster’s president, Jeremy Berkowitz, presented the certificate of mechanic’s lien to a notary public to be notarized. He signed the certificate in the notary’s presence and she then notarized the document. The notary did not administer an oral oath, nor did Berkowitz sign an oath. The notary’s signature on the certificate appears under the following passage: “On this . . . day . . . before me, Jeremy Berkowitz, president of Red Rooster Construction Company, Inc., personally appeared, and made solemn oath that the facts stated herein are true .... IN WITNESS WHEREOF, I hereto set my hand and seal this . . . day . . . .” Berkowitz’ signature does not follow any passage stating that it was his solemn oath that the facts stated in the certificate were true. His signature merely appears at the end of the body of the certificate stating the facts allegedly entitling him to a mechanic’s lien.

Section 49-34 provides that a mechanic’s lien is invalid unless the certificate of the lien filed on the land records is “subscribed and sworn to by the claimant.” “ ‘[A] requirement that a document be “sworn to” contemplates the execution of an affidavit that the facts contained in it are true.’ ” J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 513-14, 555 A.2d 990 (1989). “An oath . . . signifies the undertaking of an obligation ‘to speak the truth at a time [that] may deeply affect the rights and the character of individuals.’ ” State v. Grant, 176 Conn. 17, 24, 404 A.2d 873 (1978). Consequently, we have held that the mechanic's lien statute requires the performance or execution of an oath swearing that the facts contained in the document are true. J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra.

General Statutes § 1-22 entitled “Ceremony,” provides: “The ceremony to be used, by persons to whom an oath is administered, shall be the holding up of the right hand; but when any person, by reason of scruples of conscience, objects to such ceremony or when the court or authority by whom the oath is to be administered has reason to believe that any other ceremony will be more binding upon the conscience of the witness, such court or authority may permit or require any other ceremony to be used. ” (Emphasis added.) We previously have noted the statutory requirement of a ceremony to effectuate a valid oath: “An oath . . . is a solemn and formal declaration that the contents of a declaration, written or oral, are true, and it must be administered in accordance with the ceremony and procedures set forth in [§ 1-22].” (Emphasis added.) State v. Assuntino, 180 Conn. 345, 354, 429 A.2d 900 (1980). Section 1-22 requires, therefore, that some ceremony be conducted if an oath is obligated by statute or other law.

Although the term “ceremony” is not defined by statute, it is clear that some formality is essential. “[T]o make a valid oath, there must be, in some form, an unequivocal and present act by which the affiant consciously takes upon him or herself the obligation of an oath. . . . Stated otherwise, in order to have a valid statement under oath, the attention of the person to be sworn must be called to the fact that his or her statement is not a mere asseveration, but must be sworn to, and he or she must do some corporal act in recognition of this.” 58 Am. Jur. 2d 1056, Oath and Affirmation § 18 (1989), and cases cited therein.

Red Rooster argues that merely signing the certificate of lien that contained a statement signed by the notary that the claimant appeared and made solemn oath that the facts stated in the certificate were true was sufficient to comply with the oath requirement. We are unpersuaded.

We first note that we need not decide in this case whether the signing of a written statement by the actual claimant swearing that the facts in the document are true, without more, constitutes a sufficient ceremony for an oath. In the present case, Red Rooster’s president did not sign an oath that the facts contained in the certificate were true. Indeed, the notary was the only individual to sign a statement that even contained language approximating an oath. Moreover, her signed statement asserted only that Berkowitz had sworn that the facts contained in the certificate were true, an assertion that she later testified at trial was untrue.

To validate a mechanic’s lien certificate without any evidence that the claimant performed some act or form of ceremony indicating that the claimant consciously undertook the obligation of an oath “would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public.” J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 518. In light of the fact that (1) an oral oath was not administered, (2) Red Rooster’s president did not sign a statement swearing to the truth of the facts contained in the certificate, and (3) § 1-22 requires that some ceremony be performed in making an oath, the trial court properly concluded that the certificate was not “sworn to.” The lien is therefore invalid.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes § 49-34 provides: “certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

       General Statutes § 49-39 provides: “time limitation of mechanic’s lien, action to FORECLOSE privileged. 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, by complaint, cross-complaint or counterclaim, 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 or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law. An action to foreclose a mechanic’s lien shall be privileged in respect to assignment for trial. With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation.”

       The complaint also named Kenneth Kraus, the president of River Associates, as a defendant. River Associates and Red Rooster later stipulated that, after a subsequent payment of $50,000 to Red Rooster, River Associates owed $208,402.36 on the contract. Pursuant to that stipulation, Red Rooster withdrew its action as to Kenneth Kraus.

       General Statutes § 49-37 (a) provides in relevant part: “dissolution op mechanic’s lien by substitution of bond, joinder op actions on claim and bond, (a) Whenever any mechanic’s lien has been placed upon any real estate pursuant to sections 49-33, 49-34 and 49-35, 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, and the judge shall order reasonable notice to be given to the lienor of the application. ... If the judge is satisfied that the applicant in good faith intends to contest the lien, he shall, if the applicant offers a bond, with sufficient surety, conditioned to pay to the lienor or his assigns such amount as a court of competent jurisdiction may adjudge to have been secured by the lien, with interest and costs, order the lien to be dissolved and such bond substituted for the lien and shall return the application, notice, order and bond to the clerk of the superior court for the judicial district wherein the lien is recorded; and, if the applicant, within ten days from such return, causes a copy of the order, certified by the clerk, to be recorded in the town clerk’s office where the lien is recorded, the lien shall be dissolved. Whenever a bond is substituted for any lien 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. . . . Whenever a bond has been substituted for any lien, pursuant to this section, unless an action is brought to recover upon the bond within one year from the date of recording the certificate of lien, the bond shall be void.”

       River Associates ceased active participation in this case after the complaint had been amended and has not participated in this appeal. Hereinafter, we will refer to the bank and the title company as the defendants.

       In concluding that an “owner” of a property under General Statutes § 49-34 includes the mortgagee of the property, the trial court principally relied on our decision in Papa v. Greenwich Green, Inc., 177 Conn. 295, 416 A.2d 1196 (1979). Papa does not support the trial court’s decision. In Papa, we merely held that the term “owner” included individuals who had purchased condominium units after the lienor had begun to furnish the material or services to the vendor of the property. Papa v. Greenwich Green, Inc., supra, 303. Nowhere in our decision in Papa did we suggest that a mortgagee of the condominium units was an “owner” pursuant to the statute.

       Red Rooster began to provide material and services to River Associates on September 30, 1987. The bank received its interest pursuant to a mortgage deed recorded on February 4, 1988. General Statutes § 49-33 provides that a mechanic’s lien takes priority over any subsequent encumbrance if the material or services on which the lien is based were provided before the subsequent encumbrance originated even if the lien is recorded after that encumbrance. Consequently, in the present case, Red Rooster’s lien, if valid, would take priority over the mortgage given to the bank.

       The defendants have directed our attention to a decision of the Superior Court, Satter, J., in which the mechanic’s lien was held to be unconstitutional because it does not give notice of the filing of the lien to the mortgagee. PDS Engineering & Construction, Inc. v. Double RS, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90 03786845 (January 6, 1992) (5 Conn. L. Rptr. 306). That decision does not advance the appellees’ claim because: (1) the trial court later reversed itself and held that the mechanic’s lien statute is constitutional; and (2) we find the reasoning in the original opinion unpersuasive. We simply note that, in the original decision, the Superior Court’s extension of our previous decisions in Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778, vacated on other grounds, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), and General Electric Supply Co. v. Southern New England Telephone Co., 185 Conn. 583, 441 A.2d 581 (1981), and the United States Supreme Court’s decision in Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), was unwarranted by current law and the legal reasoning contained in those decisions.

       The defendants’ argument, if taken to its logical conclusion, would also cast significant doubt on statutory schemes that grant federal, state or municipal tax liens priority over other encumbrances without notice of the filing of the tax liens to the subsequent encumbrancer. On the basis of the present briefing, we find unpersuasive an argument that casts such a wide shadow.

       The plaintiff has cited cases from other jurisdictions that he argues support upholding the lien in this case. See People v. Walker, 347 Cal. App. 2d 554, 55 Cal. Rptr. 726, cert. denied, 389 U.S. 824, 88 S. Ct. 60, 19 L. Ed. 2d 77 (1967); HCI Corporation v. Voikos Construction Co., 581 A.2d 795 (Me. 1990); Blackburn v. Motor Vehicles Division, 576 P.2d 1267 (Or. App. 1978); State v. Lewis, 85 Wash. 2d 769, 539 P.2d 677 (1975). These decisions, however, are both factually and legally inapposite to the present case. None of the cases cites an applicable statute that requires, as in our state, some form of ceremony to be performed to effectuate a valid oath. Furthermore, in each case the party signed the document below a written statement that the document was under oath or that the party “swore to” the truth of the facts contained; see Blackburn v. Motor Vehicles Division, supra, 1270; State v. Lewis, supra, 771; an oral oath was actually administered; HCI Corporation v. Voikos Construction Co., supra, 797-98; or there was direct evidence by both the party and the notary that the party understood that he was under oath, and that the notary reminded the party that he was regarded as being under oath. People v. Walker, supra, 557. In the present case, the record is devoid of such facts.


source: Caselaw Access Project

license: Public Domain

text:
    Centerbrook, Architects and Planners v. Laurel Nursing Services, Inc., et al.
    (14513)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.

      Argued November 4, 1992
    decision released February 9, 1993

      Deborah J. Blood, with whom was W. Campbell Hudson III, for the appellant (plaintiff).

      Joel Mandell, with whom, on the brief, was Jeffrey Mirman, for the appellee (defendant Coastal Savings Bank).
   Borden, J.

The plaintiff, a partnership known as Centerbrook, Architects and Planners (Centerbrook), appeals from the summary judgment of the trial court declaring Centerbrook’s mechanic’s lien null and void. Centerbrook claims that the trial court improperly invalidated its mechanic’s lien on the property involved in this case (property) because: (1) the named defendant, Laurel Nursing Services, Inc. (Laurel), for whom Centerbrook had performed its services, had a sufficient equitable interest in the property to subject the property to Centerbrook’s lien; and (2) the owner of the property consented to the work performed by Centerbrook so as to subject the property to its lien. We affirm the judgment of the trial court.

The pleadings and the material produced on the motion for summary judgment filed by the defendant Coastal Savings Bank (Coastal) established the following undisputed facts. On July 14, 1989, Centerbrook and Laurel entered into a contract pursuant to which Centerbrook performed certain architectural and engineering services to aid Laurel’s acquisition of local permits to operate a day-care center on the property, located in the town of Old Saybrook. In connection with these services, Centerbrook had full access to the property, and attended numerous meetings on site with representatives of Laurel and of the town. Laurel signed the contract as “owner” of the property, and at all times represented that it was acquiring or had acquired the property to open a day-care center.

When it signed the contract with Centerbrook on July 14,1989, Laurel neither owned nor had contracted to buy the property, which was owned by the estate of Kenneth P. Clark (estate). On July 26, 1989, however, Laurel signed a “purchase and sale agreement” regarding the property, offering to buy the property from the estate for $175,000, to be paid in cash or by a cashier’s check. Of that amount, Laurel was to obtain institutional financing in the amount of $150,000. In addition to a mortgage contingency clause and other standard clauses protecting Laurel’s interest in purchasing the property, the contract contained the following significant provisions: (1) “10. Additional Provisions: This offer [is] subject to Probate Court approval. Offer is subject to and conditional upon the buyer’s ability to obtain the necessary permits and approvals from the various departments of the Town of Old Saybrook, Ct for the operation of a daycare/learning center at this site. Asbestos must be removed from the cellar of the property, this asbestos is used as an insulator for the heat pipes. The asbestos must be removed from the site prior to closing”; (2) “17. Time to Accept: Unless the BUYER has received a copy of this Agreement, signed by all the parties, on or before July 28,1989, this offer shall be revoked and the BUYER’S deposit shall be returned”; and (3) “WHEN SIGNED BY ALL PARTIES THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT.” The estate accepted Laurel’s offer by signing this document on July 28, 1989.

On October 16,1989, the estate conveyed title to the property to Laurel pursuant to the purchase and sale agreement and Laurel mortgaged the property to Coastal, which recorded its mortgage deed on the same day. On December 7, 1989, Centerbrook recorded its mechanic’s lien against the property. The lien referred to Laurel’s contract with Centerbrook for work commencing July 14,1989, and ending November 27,1989, and claimed that “the date of [the] commencing of this lien is the 14th day of July, 1989.”

Thereafter, Centerbrook instituted this action to foreclose its mechanic’s lien, naming Coastal as a subsequent encumbrancer. The trial court granted Coastal’s motion for summary judgment, declaring Center-brook’s lien null and void. This appeal followed.

In order to understand Centerbrook’s claims on appeal, it is necessary to place them in the context of our case law regarding mechanic’s liens. “We recently delineated in Seaman v. Climate Control Corporation, 181 Conn. 592, 595, 436 A.2d 271 (1980), the two classes of people entitled to claim a lien upon land that they have improved: Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for'such owner in procuring labor or materials.” (Internal quotation marks omitted.) Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984). Centerbrook does not claim to come within the second of these categories, which focuses on whether the person for whom the lienor performed its services was the agent of the owner of the property. See id., 294. Rather, Center-brook’s claims invoke the first category of protected lienors.

Relying on the “remedial intent” of our mechanic’s lien statute; General Statutes § 49-33; see H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981); Centerbrook first argues that our case law recognizes “that one may acquire an equitable interest in real property before legal title passes sufficient to be considered an owner for purposes of the mechanic’s lien statute.” Under this line of argument, Centerbrook contends in effect that it performed its services “by virtue of an agreement with . . . the [equitable] owner”; Hall v. Peacock Fixture & Electric Co., supra; of the property, namely, Laurel.

In support of this argument, Centerbrook relies on four cases: Bridgeport People’s Savings Bank v. Palaia, 115 Conn. 357, 161 A. 526 (1932); Siepold v. Gibbud, 110 Conn. 392, 148 A. 328 (1930); Hannan v. Handy, 104 Conn. 653, 134 A. 71 (1926); and Hillhouse v. Pratt, 74 Conn. 113, 117, 49 A. 905 (1901). Centerbrook maintains that these cases stand for the proposition that one who performs services for a buyer of real property has mechanic’s lien rights if (1) the buyer’s purchase agreement reflects an intent that work must be performed by the buyer on the subject property before title will pass, (2) title in fact passes, and (3) the contract for services that is enforced through the mechanic’s lien exists between the contractor and the buyer of the property. Centerbrook argues that any lien based on such work is enforceable against the buyer and takes priority over other encumbrances to the extent that the work performed began before such encumbrances arose.

We first note that Centerbrook does not claim that it is entitled to a mechanic’s lien on the property simply because (1) it performed services for Laurel while Laurel had a contract to purchase the property, and (2) Laurel thereafter acquired title to the property. Nor does Centerbrook argue that it had lien rights simply because Laurel’s contract with the estate gave Laurel permission to obtain the permits and approvals from the town.

Focusing instead on the requirement that the purchase agreement between the buyer and seller reflect an intent that work on the property “must be performed by the buyer” before title will pass, Centerbrook argues that this case falls squarely within the doctrine of these cases because “the language of the purchase agreement between [the estate] and Laurel was not merely permissive. Laurel was required to obtain all necessary permits and approvals from [the town] before title would pass. The offer for sale was conditioned upon Laurel’s ability to obtain such permits and approvals, and the contract would have terminated had Laurel not been able to qualify as a daycare/leaming center.” We disagree.

Centerbrook reads the relevant cases, and their underlying rationale, more broadly than they warrant. In Bridgeport People's Savings Bank v. Palaia, supra, this court rejected the claim of a mechanic’s lienor to priority over a purchase money mortgagee where the lienor had delivered materials to the property at the behest of the buyer who thereafter acquired title to the property. The buyer had received oral permission from the seller to begin to erect a house on the property before title passed. Id., 359. We stated that “[t]he extent of the equitable interest acquired by [the buyer] under the agreement with [the seller] is to be determined by the intent of the parties to that agreement. Merely contracting for a title deed and the imposition of the [mortgage] as part of the same transaction without granting [the buyer] specific or implied authority to encumber the land by a lien before that time, cannot be said to create such an equitable estate in [the buyer] that liens could attach before he acquired title. . . .

“An equitable interest which would have supported these liens would have existed if a part of the contract between [the buyer] and the owners had been that [the buyer] should take immediate possession of the property and proceed with the work of construction. The liens would then have attached to the extent of his interest. Contracts of that nature were involved in the following cases. Seipold v. Gibbud, [supra, 395]; Hannan v. Handy, [supra, 658]; Hillhouse v. Pratt, [supra, 117]. It cannot be said that the mere consent to start work constituted an implied contract that he should build thereon or that by beginning work he could create liens on the vendors’ land. Mechanics’ liens, under our statute, arise where the work is done by authority of the landowner himself, ‘or of some person having authority from or rightfully acting for such owner in procuring such labor or materials.’ General Statutes § 5105 [now General Statutes § 49-33 (a)].” Bridgeport People’s Savings Bank v. Palaia, supra, 361-62.

Any inference from this language that even a contractual provision allowing the buyer to build on the land would support an equitable interest in the buyer sufficient to impose a lien is dispelled by the court’s specific rejection of the buyer’s argument to that effect. “The appellants suggest that the rights of the lienors should be the same where the materials were furnished after the vendee was given permission to build, as where he and the vendor had contracted that he should build, before receiving title, and they ask how the materialman is to know whether the contract actually stipulates for the building or the vendor has merely consented to it.

“One who renders services or furnishes material in the erection of a building on land which stands of record in the name of one, other than the person who procures the work to be done, is put upon notice, and if he fails to ascertain what rights the procuring party has in the land, he proceeds at his own risk so far as any claim for the payment of his bill out of the land is concerned.” (Emphasis added.) Id., 363.

In Seipold v. Gibbud, supra, we concluded that the buyer of the property had a sufficient equitable interest in the property to support the imposition of a mechanic’s lien by her materials supplier. The contract between the seller and buyer of the land, however, required the buyer to complete construction of a house on the land before passage of title, and the purchase price was paid partly in cash and partly by way of a purchase money mortgage back to the seller. Id., 393. Thus, under those facts, the seller had an interest in the completion of the house before passage of title because the value of his mortgage would be enhanced by that completion. In that circumstance, we held that if “the terms of the contract of purchase contain a direction to the vendee to construct a building on the premises, those who perform labor or furnish materials in order to enable the vendee to carry out that undertaking have a right of lien which will take precedence over even a purchase price mortgage.” (Emphasis added.) Id., 396.

Similarly, in Hillhouse v. Pratt, supra, 118, this court upheld the mechanic’s lien because the contract between the seller and the buyer required the construction of a house on the property before title would pass, and because the purchase price was to be paid partly by way of a purchase money mortgage back to the seller. We stated that the construction of the house “was, by the express terms of the agreement, required to be built by the vendee . . . while the title remained in the vendor . . . and its construction by [the vendee] to that extent was necessary to the perfection of his equitable title to the property. It was in effect a part of the purchase price to be paid to [the vendor].” Id. Under those circumstances, the buyer had a sufficient equitable interest when he contracted with the materials suppliers such that, “the deed having afterwards been delivered to [the vendee], [the materials suppliers] could enforce their liens against the property as prior liens to the . . . mortgage” on the property. Id., 118-19; see also Hannan v. Handy, supra, 658 (if contract provides that buyer take possession of land and build upon it, and that deed not pass until completion of building, contract gives buyer sufficient equitable interest in land to support mechanic’s lien that attaches to extent of estate afterward acquired under contract of purchase).

From these cases we derive the principle that, in order for the buyer under a contract of purchase of real estate to have a sufficient equitable interest in the property to support a mechanic’s lien in favor of the buyer’s supplier of materials, the provision in the contract providing for the work on the property must be in some sense for the interest or at the behest of the seller of the property. The provision must require, as a condition of the seller’s obligations under the contract, that the buyer perform the work at issue. The rationale underlying this principle is that the buyer under those circumstances is improving the land, not only for the buyer’s own benefit, but also for the benefit of the record owner. That rationale is what supports the conclusion that the seller has transferred to the buyer, before the buyer takes title to the property, an equitable interest in the property sufficient to support a mechanic’s lien, in favor of the buyer’s supplier of materials, that attaches to the estate of the buyer after the buyer takes title thereto.

Application of this principle and its rationale to the facts of this case leads us to reject Centerbrook’s claim. Contrary to the assertion of Centerbrook, the provision in the contract regarding Laurel’s ability to obtain the necessary municipal permits for the operation of a day-care center is permissive and did not require Laurel to obtain those permits before title would pass. That provision can reasonably be viewed only as intended for the protection of the buyer, Laurel, and not for any benefit of the seller, the estate. The provision was part of Laurel’s offer to buy the property, which was specifically made “subject to and conditional upon [Laurel’s] ability to obtain” those permits. Thus, if the permits had not been secured, it would have been Laurel, and not the estate, that would have had the choice of either waiving the condition and closing on the property or terminating the contract. It was Laurel, and not the estate, that sought to use the property for a day-care center. We can conceive of no reason, and Centerbrook presents none, why the estate would have had any interest in the use of the property after passage of title to Laurel. Laurel was to pay cash for the property. Thus, there was nothing in the financing of the transaction that gave a benefit to the estate as a result of those permits. Under these circumstances, the only reasonable construction of the intent of the parties to the contract is that the provision at issue was for the benefit of Laurel and not the estate. Therefore, this contract did not give Laurel an equitable interest in the property, before taking title thereto, sufficient to support a mechanic's lien by Centerbrook on Laurel’s estate in the property after Laurel took title thereto.

Centerbrook’s second argument is something of a mirror image of its first argument. Whereas in its first argument Centerbrook contended that its mechanic’s lien arose by virtue of an agreement with the equitable “owner” of the land, namely, Laurel; see Hall v. Peacock Fixture & Electric Co., supra; in this argument Centerbrook contends that its lien arises by virtue of the consent of the title owner of the property, namely, the estate. Centerbrook argues that the estate “consented” to the work, in the sense required by our mechanic’s lien case law, by signing the agreement, allowing Centerbrook full access to the property and ultimately benefiting therefrom because, had title not passed, the estate would have been the owner of property already approved as a day-care center. We disagree.

“[A] landowner does not subject his property to a mechanic’s lien by simply allowing work to be done on it.” Id., 295. Nor does the owner’s knowledge that the work is being done subject the property to a mechanic’s lien. Newtown Associates v. Northeast Structures, Inc., 15 Conn. App. 633, 639-40, 546 A.2d 310 (1988). “The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor.” Avery v. Smith, 96 Conn. 223, 228, 113 A. 313 (1921). Although an express contract is not necessary for such a consent, the services must be furnished under circumstances indicating an implied contract by the owner to pay for them. Id.

The facts relied on by Centerbrook fall short of this standard. There is nothing in the agreement, or in anything else produced by Centerbrook on the motion for summary judgment, that indicates that the estate agreed, directly or impliedly, to be liable for Center-brook’s labor. The fact that, had title not passed to Laurel, the estate would then own a parcel on which a daycare center could be operated adds nothing to the strength of Centerbrook’s argument. A seller under a sales contract that contains zoning or other, similar conditions for the sole benefit of the buyer would always be similarly “benefited” if the buyer is successful in fulfilling those conditions but the transaction does not close thereafter. To hold that, under those circumstances, the owner of the property consented to a mechanic’s lien would vitiate the distinction that we have consistently drawn between, on the one hand, merely granting permission to do the work and, on the other hand, requiring either an express or implied agreement to be liable for the services. In sum, “Connecticut case law clearly indicates that [the estate’s] permission did not rise to the level of ‘consent’ contemplated by” our mechanic’s lien statute. Hall v. Peacock Fixture & Electric Co., supra, 296.

The judgment is affirmed.

In this opinion the other justices concurred.

       Centerbrook appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The other defendants are Coastal Savings Bank, the first mortgagee on the property, which obtained the summary judgment at issue, and Richard Riggio & Sons, Inc., a subsequent mechanic’s lienor, which has not participated in this appeal.

       We also reiterated that “where a purchaser of land enters into possession of it and builds in accordance with the terms of the contract of sale he has such an equitable interest in the land that a mechanic’s lien might attach to the extent of that interest.” (Emphasis added.) Seipold v. Gibbud, 110 Conn. 392, 395, 148 A. 328 (1930).

       We need not explore in this case whether the language in the cases regarding the buyer’s taking possession of the property and building thereon supplies an independent ground of equitable ownership in the buyer, or whether it is simply another way of stating the same principle. Centerbrook does not claim that Laurel took possession of the property before taking title to the property.

       We recognize, as Centerbrook suggests, that ordinarily factual questions involving intent should not be determined by way of summary judgment. “We have also held, however, that even with respect to questions of . . . intent . . . the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” Wadia Enterprises, Inc. v. Hirshfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). In this case, Centerbrook adduced nothing in response to Coastal’s motion for summary judgment, which relied on the language of the agreement, with respect to this issue, that would have cast any doubt on the otherwise clear import of that language taken in the context of the agreement as a whole.
      Furthermore, the parties argued the motion in the trial court on the premise that there were no questions of fact, the trial court decided it on that basis, and the parties briefed the appeal on that basis. It was not until its reply brief that Centerbrook suggested that the agreement between the estate and Laurel presented a question of fact as to the intent of the parties regarding the provision at issue. Absent an indication in this record that the provision in the agreement means something other than what it plainly states, we decide this case on the basis upon which it was tried and decided in the trial court and briefed in this court. See, e.g., Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988).


author: Per Curiam.

text:
    Town of Farmington v. Kevin V. Dowling
    (14522)
    Callahan, Berdon, Norcott, Katz and Ment, Js.
    Argued January 14
    decision released February 9, 1993

      Victor J. Dowling, for the appellant (defendant).

      Gregory T. D’Auria, with whom was Charles L. Howard, for the appellee (plaintiff).
   Per Curiam.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The underlying issues have been fully considered in the opinion of the Appellate Court; Farmington v. Dowling, 26 Conn. App. 545, 602 A.2d 1047 (1992); and it would serve no useful purpose for us to repeat the discussion contained therein.