ABLE PLUMBING, INC. v. ROBYN SANDAK ET AL.

2006 Ct. Sup. 2479, 40 CLR 703
No. CV 03-0193854 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
January 31, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
DAVID R. TOBIN, JUDGE.

This action was brought by the plaintiff plumbing company to foreclose a mechanics lien filed against residential property owned by the defendants. The defendants substituted a bond for the mechanics lien and filed a counterclaim claiming damages based on various theories, including CUTPA violations. The case was referred to an attorney trial referee, who after a two-day trial, recommended judgment for the plaintiff on the foreclosure action in the amount of $15,710.02 and for the defendants on their counterclaim in the amount of $3,709.10. The attorney trial referee recommended that the plaintiff be awarded attorneys fees “for the foreclosure” and that the defendants be denied counsel fees because they had failed to prove a CUTPA violation. After the report of the attorney trial referee was accepted over the defendant’s objection the plaintiff moved for an award of counsel fees pursuant to General Statutes § 52-249(a).[1]

The defendants object to the award of counsel fees on two grounds. The defendants first claim that language of General Statutes § 52-249(a) does not permit the award of counsel fees after a bond has been substituted for the lien. The defendant’s also claim that if the plaintiff is entitled to an award of attorneys fees, such fees should not include those required to try the issues relating to the amount of the plaintiff’s underlying claim but be limited to fees incurred in the foreclosure of the lien.[2]

The defendants point out that the first sentence of General Statutes § 52-249(a) allows the award of reasonable attorneys fees only when the action to foreclose the mechanics lien has involved “a hearing as to the form of judgment or the limitation of time for redemption.” They claim that since the issues of form of judgment or time for redemption never arise when a bond has been substituted for a mechanics lien, the statute, on its face, CT Page 2480 does not permit the court to award an attorneys fee.

The defendant’s position is supported by a recent Superior Court decision. AA Mason, LLC v. Montagno Construction, CV 01-0809850 Judicial District of Hartford (Satter, JTR, May 10, 2005) (39 Conn. L. Rptr. 339). In that case the court thoroughly analyzed background of the statute and considered whether, under any circumstances, a plaintiff seeking to enforce a mechanic’s lien when a bond had been substituted as security would be entitled to attorneys fees. The court noted that a number of Superior Courts had previously held that attorneys fees awarded under General Statutes § 52-249(a) are limited to those pertaining exclusively to the “foreclosure aspects of the case.”Wright Brothers Builders, Inc. v. Dowling, CV 94-0136604 Judicial District of Stamford/Norwalk (Lewis, J., September 27, 1999), M.J.M. Landscaping, Inc. v. Lorent, CV 99-0174738 Judicial District of Stamford/Norwalk (Karazin, J., April 4, 2002) (31 Conn. L. Rptr. 629). See also: FCM Group, Inc. v. Miller, CV 00 0177754 Judicial District of Stamford/Norwalk (Lewis, J., October 6, 2004) and Traina Enterprises, Inc. v. Manousos, CV 02 0812996 Judicial District of Hartford (Satter, JTR, August 11, 2003).

The court in AA Mason, supra, concluded that the provisions of the second sentence of General Statutes § 52-249(a)[3]
was, in effect a nullity. The court stated: “The last sentence in Section 52-249(a), to the effect that the same costs and fees as in the foreclosure of a mortgage or lien shall be recoverable in an action upon the bond which has been substituted for the mechanics lien, is particularly inept because in an action on a bond there is no hearing as to the form of the judgment or the time for redemption. The legislature apparently added that language without an awareness of how it meshed with the rest of the statute. While generally every word of the statute is assumed to have some meaning, this is an example of such poor draftsmanship that this court cannot give that sentence meaning.”

The court agrees and determines that the plaintiff’s motion for attorneys fees must be and it hereby is denied.

[1] “The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there as been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if there had been a hearing on an CT Page 2481 issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic’s lien.”
[2] The defendants agree that plaintiff was represented by separate counsel in connection with their counterclaim and that the fees requested by plaintiff were incurred exclusively in prosecuting its complaint and did not include any amounts incurred in defense of the counterclaim.
[3] The sentence was added to the statute under § 8 of Public Act 99-153.

CT Page 2482