concurring in part and dissenting in part.
I fully concur with the Majority's determination that Indiana Code section 32-28-3-11 is only satisfied when the surety matches the projected undertaking. Op. at 10. However, I respectfully write sepa*12rately to disagree with the Majority's conclusion that depositing money with the clerk of the court constitutes a surety. Op. at 11.
I. A Surety Must Match the Undertaking
Like the Majority, I believe an "undertaking with surety" is a unitary object of the verb "file" in Indiana Code section 32-28-3-11(b)'s costs and attorneys fees requirement. If a surety and an undertaking were two separate entities to be individually approved by the court, Indiana Code section 32-28-3-11 would have stated, "[an owner] may file in the action a written undertaking and a surety to be approved by the court."
In addition, construing undertaking and surety as two separate objects would not subject a surety to Indiana Code section 32-28-8-11(b). Pursuant to such an interpretation, the surety would not even need to cover the amount of the lien because the requirement that the surety cover any amount can only be found in Indiana Code section 32-28-3-11(b)'s phrase "any judgment." Because it is clear that Indiana Code section 32-28-3-11(b)s "any judgment" requirement contemplates surety, that surety must also be subject to Indiana Code section 82-28-8-l1(b)'s attorney's fees requirement.
II. The Surety that is Required is a Third Party
However, just because the two distinct entities are one object in the statute's sentence structure does not mean that an owner may file a cash bond to satisfy both. Indiana Code section 32-28-3-11 requires both an undertaking and a surety.
A surety is a tripartite-contractual relationship between the party insured (the "obligee"), the principal (on whom the original obligation rests), and the party secondarily liable (the surety). Meyer v. Bldg. & Realty Serv. Co. 209 Ind. 125, 133, 196 N.E. 250, 253 (1935).4 A surety undertakes to do that which the principal is bound to do in the event the principal fails to comply with an obligation. Ind. Univ. v. Ind. Bonding & Sur. Co., 416 N.E.2d 1275, 1278 (Ind.Ct.App.1981) (citing Hess v. J.R. Watkins Med. Co., 70 Ind.App. 416, 420, 123 N.E. 440, 441 (1919)). In Indiana, companies are authorized by statute to act as sureties, and-though there are important differences-a surety contract is similar to an insurance contract. Ind.Code § 27-1-5-1(Class 2)(k) (2008); Garco Indus. Equip. Co. v. Mallory, 485 N.E.2d 652, 654 n. 1 (Ind.Ct.App.1985), trans. denied.
A third-party surety contract is not satisfied by the owner's act of depositing cash with the clerk of the court. I agree with the Majority's reliance on Haimbaugh Landscaping, Inc. v. Jegen's statement that "a property owner may choose to post bond from which to pay any judgment later entered against him as a result of the foreclosure suit" as standing for the proposition that "any judgment" indicates a surety must include the cost of projected attorneys fees. 653 N.E.2d 95, 103 (Ind.Ct.App.1995) (emphasis added).
*13However, I do not believe Haimbaugh indicates that posting a cash undertaking also constitutes a surety. Haimbaugh relied on the predecessor to the current Indiana Code section 32-28-3-11 when it stated an owner may post bond. See Haimbaugh 653 NE.2d at 103. Haim baugh's statement is merely a cursory reference to Indiana Code section 32-8-3-11's now defunct title of "Release on Bond." See Ind.Code § 32-8-3-11 (Burns 1980). Furthermore, the word "bond" is nowhere to be found in the current statute, and there is no indication in the current statute that surety should be construed to mean anything but a third-party surety contract. Ind.Code § 32-28-3-11 (2002). The fact that a "bond" can be anything from cash to real estate to third-party surety under Indiana statute and common law only adds to the confusion.
Importantly, the third-party-contractual nature of a surety protects the contractor from the possible bankruptey of the property owner, which is always a very real risk in the construction industry. See Lon-go v. Glime, 1989 U.S. Dist. LEXIS 18087 (E.D.Mich.1989) (the liability of a surety is not discharged merely because its principal's liability has been discharged in bankruptcy) (citing Gould Plumbing & Heating, Inc. v. Capitol Indem. Corp., 59 Mich. App. 696, 230 N.W.2d 19 (1975)); see also Post v. Losey, 111 Ind. 74, 79, 12 N.E. 121, 1283 (1887). Such protection is not present when the owner merely deposits money with the clerk of the court. See In re Prescott, 805 F.2d 719, 728 (7th Cir.1986) (debtor transactions made before the filing of bankruptcy may be voided as a preference in a bankruptcy) (citing 11 U.S.C. § 547).
Because cash deposited with the clerk of the court is not beyond the long reach of a trustee in bankruptcy, I believe a cash deposit should not be allowed to take the place of the third-party surety contract clearly contemplated in the statute. I acknowledge that the relatively nominal amount involved in this case and the trial court's notation of the Owner's extensive possessions reduce such concerns in the case at bar. Tr. pp. 13-14. But unusual circumstances are not what good law is founded upon or what statutes generally contemplate. It is not difficult to imagine future suits involving substantially greater lien amounts or substantially less certain sources of payment.
Finally, it is imperative to recognize the purpose of "undertaking with surety." Only when adequate undertaking with surety is filed by or on behalf of the owner can the court release the statutory lien against the owner's real property and improvements. The lien is often the only real leverage a contractor has against an owner. The lien clouds title and inhibits financing of the improvements made by the contractor possessing the lien, and everyone else associated with the project. I believe a requirement for a third-party surety is the clear and understandable intention of the statute which allows that unusual and important leverage to be extinguished.
For all of the above reasons, I respectfully dissent from the Majority's conclusion that depositing cash with the clerk of the court constitutes a surety within the meaning of Indiana Code section 32-28-8-11.
. I note the Majority's reference to dictionaries for the definition of "surety." I believe it more appropriate to rely on our supreme court's definition of a technical term like "surety" when used in a legal context. Furthermore, if a dictionary definition of "surety" is to be used instead of the definition provided by our supreme court, I believe Black's Law Dictionary to be the more appropriate reference. See Black's Law Dictionary 1441 (6th ed.1990) (defining "surety" as "[olne who undertakes to pay money or to do any other act in the event that his principal fails therein"). Simply said, a surety cannot also be the principal in the suretyship relation.