Opinion
No. FST CV 00 0177754
February 14, 2006
MEMORANDUM RE REQUEST FOR ATTORNEYS FEES
On October 11, 2005, a hearing was held on the application (motion #191) of the plaintiff, the FCM Group, Inc., for attorneys fees. The underlying case involves a dispute between the plaintiff, a building contractor, and the defendant homeowner, Jeffrey T. Miller, and his wife, Cheryl Miller. In connection with this litigation, the plaintiff placed two mechanic's liens on the defendant homeowner's property at 134 Butternut Hollow Road in Greenwich.
The case was referred to Attorney Trial Referee A.H. Hoddinott, Jr., who issued two reports, on April 29, 2003 and on January 2, 2004. The referee recommended that judgment enter in favor of the plaintiff for $266,846, less a set-off for the defendants in the amount of $5,000, for a total judgment for the plaintiff and against the defendants in the amount of $261,846.
The defendants objected to the attorney trial referee's report and on October 6, 2004, this court filed a memorandum of decision entering judgment in favor of the plaintiff for $261,846, the amount recommended by the referee.
The mechanic's liens were never foreclosed because they were released by the plaintiff at the request of the defendants so that their house could be sold. Instead the parties entered into an arrangement with the Old Republic National Title Insurance Company whereby this company would hold in escrow $375,000 from the proceeds of sale of the subject premises, and would guarantee payment to the plaintiff of its judgment against the defendants in that maximum amount.
On January 24, 2005, the defendants filed a "notice reserving their right to appeal." The judgment of October 6, 2004 was not entered as a final judgment at that time because the case involved a foreclosure and therefore the parties were referred to the foreclosure calendar for rulings on such matters as whether there should be a strict foreclosure or a foreclosure by sale. The effect or significance of this notice by the defendant is not included within the scope of the pending motion which involves only an application for attorneys fees.
The plaintiff now seeks attorneys fees in the amount of $64,405, not on the basis of any obligation of the defendants contained in the building contract with the plaintiff, but rather exclusively on the authority of General Statutes § 52-249. However, this statute applies only to actions for foreclosure of mechanic's liens and bonds substituted for such a lien, and then only as to two specific types of proceedings within such an action, i.e., a hearing as to the form of judgment or the limitation of time for redemption. In this present case, there was no foreclosure of a mechanic's lien or action upon a bond and this statute is therefore inapplicable.
General Statutes § 52-249(a) provides that: "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 common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent . . . a contractual or statutory exception . . . Because we must respect the legislative prerogative of choosing the special circumstances under which [attorneys fees] awards may be made . . . we require a clear expression of the legislature's intent to create a statutory exception [to the rule] . . . Thus, it is apparent that when the General Assembly want[s] to authorize the award of attorneys fees it [knows] how to do it . . ." (Citations omitted; internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532-33, 839 A.2d 1250 (2004).
It was noted in Broadnax v. New Haven, 270 Conn. 133,178, 851 A.2d 1113 (2004), that: "[T]his court also has recognized a `bad faith' exception to the American rule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney. See Maris v. McGrath, 269 Conn. 834, 844-47, 850 A.2d 133 (2004) (discussing bad faith exception to rule)." The motion for attorneys fees in this present case was not premised on this exception to the rule.
Therefore, the plaintiff's motion for attorneys fees is denied.
So Ordered.