White Sands Beach Ass'n, Inc. v. Bombaci

Full title: THE WHITE SANDS BEACH ASSOCIATION, INC. v. MARY BOMBACI ET AL

Court: Connecticut Superior Court Judicial District of New London at New London

Date published: May 12, 2009

2009 Ct. Sup. 8427 (Conn. Super. Ct. 2009)

Opinion

No. CV-04-0568713

May 12, 2009

MEMORANDUM OF DECISION ON DEFENDANTS' OBJECTION TO PLAINTIFF'S BILL OF COSTS

JOSEPH J. PURTILL, Judge Trial Referee.

I. Statement of the Process

The plaintiff, White Sand Beach Association, Inc., a quasi municipal corporation within the Town of Old Lyme formed by a special act of the legislature in 1927, brought this action to foreclose tax liens it had filed against the defendants' property. Defendants filed an answer, special defense and counterclaim. The special defense alleged that defendants' property was not within the limits and territory of the plaintiff association. The counterclaim sought reimbursement for taxes previously paid to the plaintiff.

On March 23, 2005, defendants served plaintiff with a request for admissions pertaining to the counterclaim to which plaintiff responded in detail on April 27, 2005. On August 30, 2005, the defendants filed a motion to assess costs pursuant to Connecticut General Statutes § 13-25 in which they requested reimbursement for funds incurred in hiring a title searcher and expert witness. It was claimed that this had been necessitated by plaintiff's failure to admit certain facts. Plaintiff objected to this notice claiming it was premature.

On October 18, 2005, the parties stipulated to a bifurcation of the case. Pursuant to the stipulation, a judgment of strict foreclosure was entered as to certain liens for certain years and it was agreed that defendants could proceed with a claim of invalidity of the assessment for future years.

On October 24, 2005, defendants filed an amended counterclaim. The amended counterclaim repeated the allegation that defendants' property was not within the limits of the plaintiff association because plaintiff had failed to follow the procedure required by the special act of 1927 in annexing the property. It was also claimed that plaintiff did not exist as a legal entity because it had failed to follow the requirements of the special act in its formation. The amended counterclaim further claimed that plaintiff had violated the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110a, et seq. and that plaintiff had slandered the title to defendants' property.

Plaintiff answered the counterclaim raising the special defense that the claims were barred by the equitable doctrine of laches and the applicable statute of limitation.

The case came before the court for trial on September 6 and 8, 2006 with briefs submitted after trial. It was agreed that the issue of attorneys fees and costs would be resolved for hearing subsequent to the trial.

By memorandum of decision filed December 15, 2006, the trial court entered judgment in favor of the plaintiff. Defendants appealed this decision. The judgment of the trial court was affirmed. White Sands Beach Association, Inc v. Mary Bombaci et al, 287 Conn. 302 (2008). Also, White Sands Beach Association, Inc. v. Mary Bombaci et al., 50 Conn.Sup. 557 (2008).

On February 4, 2009, as the prevailing party, plaintiff filed a bill of costs. Defendants filed an objection to the bill of costs on February 24, 2009. Pursuant to the prior stipulation of the parties, the matter was heard by the trial court on May 5, 2009.

II. Discussion

The bill of costs, together with an affidavit of attorneys fees, including the following:

A. Expenses

Service of Process $ 364.43 Civil Filing Fees $ 225.00 Title Search 60.00 Service of Process 39.30 Title Search 325.00 Title Search 255.00 $ 1,268.73 B. Attorneys Fees $15,825.00

Defendants' principal objection is to the expenses for service of process, title searches and attorneys fees. In its claim for costs, the plaintiff relies principally on Connecticut General Statutes § 12-193. Section 52-257 must also be considered.

A review of the file indicates that the marshal making the initial service of process stated his fee as $364.43. Plaintiff stated that the bill was high because of the number of parties who had to be served. There was also a supplemental return. The supplemental return does not include a notation for the marshal's fees.

Plaintiff is entitled to recover the reasonable costs of litigation which involves fees for service of process. The fees recited in the bill of costs, $364.43 and $39.30, are reasonable and properly included in the bill of costs.

Before considering the title search fees and the attorneys fees, it is necessary to determine the type of litigation presented by the case. The case started as an action to foreclose tax liens. By the amended counterclaim, defendants' claim concerning annexation, corporate formation and § 42-110a were grafted on to the case. The amendment raised issues which questioned the status of the plaintiff and not the foreclosure of the tax liens. The trial was conducted on the issues raised by the defendants in the counterclaim. The judgment of December 15, 2006 was not a judgment of foreclosure.

The plaintiff has submitted a bill of costs pursuant to § 12-183, which covers costs recoverable and actions to foreclosed tax liens. Defendants argue that § 52-257, which applies to costs and fees in civil actions should apply. Both statutes are in part applicable to the separate portions of this case. The court must separate the actions and award fees and costs accordingly.

In its bill of costs, plaintiff claims title search fees of $60, $325 and $255. Section 12-193 does not specifically mention title search fees. Section 52-257 does cover title search fees but limits the recovery of such fees to $225. It must then be concluded that plaintiff may cover fees for title search, but recovery is limited to $225.

Plaintiff has included with its bill of costs attorneys fees in the amount of $15,825. Section 12-193 allows a plaintiff in a tax foreclosure action to recover "reasonable attorneys fees incurred by the municipality as a result of a foreclosure action . . . and directly related thereto." Section 52-257 does not allow inclusion of attorneys fees by a prevailing party in the bill of costs.

Plaintiff then is entitled to recover reasonable attorneys fees directly related to the foreclosure of tax liens and not to the defense of the counterclaim. Reviewing the documents on file, it is found that a reasonable attorneys fee incurred and attributable the foreclosure action is $6,825.

III. Conclusion

Plaintiff's bill of costs is approved except that title search fees are reduced to $225 and reasonable attorneys fees are reduced to $6,825.