Opinion
No. CV06-4004974
April 11, 2006
MEMORANDUM OF DECISION
FACTS
On February 14, 2006, the plaintiff, Pulte Homes of New England, LLC, filed a motion for discharge of a mechanic's lien or in lieu of discharge, dissolution on substitution of a bond pursuant to General Statutes § 49-37. The motion alleges the following facts. On August 9, 2005, the defendant, MD Drilling Blasting, Inc., placed a mechanic's lien in the amount of $17,977.20 on property located at 20 Burr Road, for services allegedly rendered and materials allegedly furnished. On September 6, 2005, the defendant placed a mechanic's lien in the amount of $10,251.50 on property located at 112 Bartman Road. The plaintiff requests that the lien be discharged because full payment was made to the general contractor and because the lien placed on the property located at 20 Burr Road contains an inaccurate description of the premises. In the alternative, since the plaintiff intends to contest these liens in good faith, it requests that a bond be substituted for the liens. The court considered only the motion to substitute a bond.
A duplicate motion was filed on March 9, 2006.
Following arguments on the motion on March 27, 2006, the court, Booth, J., ordered the parties to file simultaneous briefs by April 3, 2006. The plaintiff's supplemental brief was filed on March 31, 2006, and the defendant's supplemental brief was filed on April 3, 2003.
DISCUSSION
"Whenever 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 . . . 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 . . ." General Statutes § 49-37(a).
In its memorandum of law in support of its motion, the plaintiff argues that General Statutes §§ 49-37 and 52-249 do not provide for the inclusion of attorneys fees in the bond to be substituted for a lien. The plaintiff further argues that a bond in the amount of $29,960.07 is sufficient surety in this action and, thus, such bond should be substituted for the lien.
General Statutes § 52-249(a) provides: "The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has 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 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."
The amount of the bond offered is calculated as follows: (1) $17,977.20 for the lien on the property located at 20 Burr Road; (2) $10,251.50 for the lien on the property located at 112 Bartman Road; and (3) $1731.37 for interest calculated at ten percent through March 31, 2006.
The defendant argues in its memorandum of law that the bond to be substituted must include reasonable attorneys fees as well as adequate interest and costs. The defendant argues that § 52-249, as amended by No. 99-153 of the 1999 Public Acts, and its relevant legislative history show that the legislature intended for attorneys fees to be included in such bonds.
Public Acts 1999, No. 99-153 amended § 52-249 by specifically stating that "[t]he 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." General Statutes § 52-249(a). This change has been criticized by at least one Superior Court. See AA Mason, LLC v. Montagno Construction, Inc., 49 Conn.Sup. 405, 411 (2005) (criticizing this change in § 52-249 as "particularly inept" and as "an example of such poor draftsmanship that [the] court cannot give that sentence meaning").
Section 52-249, which applies after a party has obtained a judgment of foreclosure or judgment upon a bond, permits a party to recover costs including attorneys fees. See General Statutes § 52-249(a). However, Section 49-37 applies prior to judgment on the lien and permits a court, upon motion, to allow a party to substitute a bond for a lien. See General Statutes § 49-37(a).
Prior to the 1999 amendment of § 52-249, attorneys fees were not recoverable in an action upon a bond given in substitution of a mechanic's lien. See S.J. Smith Construction, Inc. v. Home Depot USA, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0157414 (December 1, 1997, D'Andrea) ( 21 Conn. L. Rptr. 80, 83-84); Atlantic Pipe Corp. v. Quadrangle Limited Partnership, Superior Court, judicial district of Hartford, Docket No. CV 87 0336982 (October 27, 1993, Aurigemma, J.) ( 10 Conn. L. Rptr. 306, 308). One court stated that "[i]f this creates an inequity for a lienor whose lien is dissolved and a bond substituted therefor it is a condition which must be remedied, if at all, by the legislature." S.J. Smith Construction, Inc. v. Home Depot USA., supra, 21 Conn. L. Rptr. 83-84; see P.A. 99-153. Superior Courts, however, have routinely held that a bond substituted in lieu of a mechanic's lien does not require the inclusion of attorneys fees. See Smelser v. Newick, Superior Court, judicial district of New Haven, Docket No. CV 98 0408679 (February 5, 1998, Pittman, J.); S.J. Smith Construction, Inc. V. Home Depot USA, supra, 21 Conn. L. Rptr. 83 (§ 49-37 "does not provide for attorneys fees to be awarded").
In the present case, there has not been a judgment on the lien but rather a motion to substitute a bond for the lien and, thus, § 49-37 governs. Section 49-37 mandates that the amount of the bond be "such amount as a court of competent jurisdiction may adjudge to have been secured by the lien, with interests and costs . . ." General Statutes § 49-37(a). "The plain language of . . . [§] 49-37 authorizing the substitution of a bond provides only for an amount equal to that secured by the lien, with interests and costs . . ." (Internal quotation marks omitted.) Smelser v. Newick, supra, Superior Court, Docket No. CV 98 0408679. Although the defendant may be able to recover attorneys fees pursuant to § 52-249 if he obtains a judgment on the lien or bond, there is no provision which requires the addition of attorneys fees to the bond. Atlantic Mortgage Investment Corp. v. Stephenson, 86 Conn.App. 126, 132 (2004) ("attorneys fees are not allowed to the prevailing party . . . unless such recovery is allowed by statute or contract").
For the foregoing reasons, the court on this date has signed the "Order Dissolving Lien" dated February 9, 2000.