Opinion
(10115)
The plaintiff city of Waterbury sought an injunction requiring the defendant condominium association to construct a barrier between the condominium parking areas and abutting residential properties as required by the city's zoning regulations. The association filed a third party complaint against the original developer of the condominium project pursuant to the statute ( 47-253) that makes a developer liable for costs and losses of wrongful acts committed while the developer was in possession of the premises. The trial court granted the requested injunction and ordered the developer to reimburse the association for certain expenses. That court declined to award the association the expenses of litigation and attorney's fees, and the association appealed to this court. Held that the trial court improperly refused to award litigation expenses; pursuant to 47-253 (c), a finding of liability under 47-253 (a) mandates an award of attorney's fees and expenses of litigation.
Submitted on briefs November 8, 1991
Decision released January 7, 1992
Action for an injunction requiring the defendant to comply with certain of the plaintiff's zoning regulations, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the court, Kulawiz, J., granted the named defendant's motion to implead East Park Associates Limited Partnership as a third party defendant; thereafter, the matter was tried to the court, Pellegrino, J.; judgment granting the injunction and ordering the third party defendant to reimburse the named defendant for certain expenses, from which the named defendant appealed to this court. Reversed in part; further proceedings.
George E. Mendillo filed a brief for the appellant (named defendant).
Edward W. Case filed a brief for the appellee (third party defendant).
This appeal presents the issue of whether a court is required to award expenses of litigation, including reasonable attorney's fees, to a condominium association pursuant to General Statutes 47-253 (c). Because we conclude that a finding of liability pursuant to 47-253 (a) mandates an award of attorney's fees and expenses of litigation pursuant to 47-253 (c), we reverse the trial court's refusal to award all expenses of litigation, including reasonable attorney's fees, incurred by the association in pursuing its claim against the declarant under 47-253.
General Statutes 47-253 (c) provides in pertinent part: "Whenever the declarant is liable to the association under this section, the declarant is also liable for all expenses of litigation, including reasonable attorney's fees, incurred by the association."
General Statutes 47-253 (a) provides: "Neither the association nor any unit owner except the declarant is liable for that declarant's torts in connection with any part of the common interest community which that declarant has the responsibility to maintain. Otherwise, an action alleging a wrong done by the association must be brought against the association and not against any unit owner. If the wrong occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action, the declarant who then controlled the association is liable to the association or to any unit owner for (1) all tort losses not covered by insurance suffered by the association or that unit owner, and (2) all costs that the association would not have incurred but for a breach of contract or other wrongful act or omission."
The following facts are relevant to this appeal. The city of Waterbury instituted this action against East Park Association, Inc., the condominium association for East Park Condominium, to enforce 5.27 of the zoning ordinances of the city of Waterbury. Section 5.27 requires a suitable barrier between parking areas of condominium projects and abutting residential properties. The city's zoning enforcement officer determined that there was no fence or other barrier abutting the parking area of East Park Condominium, and this action was commenced to compel the association to remedy the violation.
The declarant, East Park Associates Limited Partnership, had neglected to construct the appropriate barrier at the time it obtained municipal approval of the condominium. The condominium association notified the declarant of the city's claim and subsequently filed a third party complaint against the declarant pursuant to General Statutes 47-253 (a).
The trial court issued an injunction directing the condominium association to construct a fence along the boundary of the condominium parking area. With respect to the third party complaint, the court found for the condominium association against the declarant pursuant to 47-253 (a)(2) and required the declarant to reimburse the condominium association for the reasonable costs incurred in the construction of the fence. The court further found that the declarant's failure to comply with 5.27 of the Waterbury zoning ordinance was an innocent and unintentional omission, and declined to award the condominium association its expenses of litigation and a reasonable attorney's fee, pursuant to 47-253 (c). This appeal by the condominium association follows.
In its brief, the declarant argues that the trial court improperly found a zoning violation by the association in the first instance and improperly found it liable to the association pursuant to General Statutes 47-253 (a). Since the declarant has "failed to comply with Practice Book 4005 relating to the filing of a cross appeal in this matter, we need not consider this claim." Futterleib v. Mr. Happy's, Inc., 16 Conn. App. 497, 499, 548 A.2d 728 (1988). If an appellee wishes to change the judgment in any way, the party must file a cross appeal. See Practice Book 4005.
Section 47-253 (c) provides, without additional qualification or condition, that whenever the liability of a declarant to a condominium association is established under 47-253, the declarant "is also liable for all expenses of litigation, including reasonable attorney's fees, incurred by the association." Rather than making the award of expenses and attorney's fees discretionary with the court; see, e.g., General Statutes 4-184a (b), 46b-87, 52-256b; the clear words of the statute mandate an award of litigation expenses and attorney's fees "[w]henever the declarant is liable to the association" under 47-253. "[W]hen the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature." Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 118, 557 A.2d 1256 (1989); Mayor v. Mayor, 17 Conn. App. 627, 631, 554 A.2d 1109 (1989).
Furthermore, a mandatory award under 47-253 (c) advances the purpose of 47-253. Section 47-253 (a) establishes the declarant's liability to hold the condominium association harmless for the costs and losses arising out of any wrong for which the declarant is deemed to be responsible. This is an indemnification requirement. See Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965) ("indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest"). Only a mandatory award of litigation expenses and attorney's fees incurred by the association will effectuate the indemnification purpose of 47-253. See Burr v. Lichtenheim, 190 Conn. 351, 363, 460 A.2d 1290 (1983); Link v. Shelton, 186 Conn. 623, 632, 443 A.2d 902 (1982); Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 82, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
Accordingly, upon finding the declarant liable to the condominium association under 47-253 (a), the trial court should have found the declarant also "liable for all expenses of litigation, including reasonable attorney's fees, incurred by the association," pursuant to 47-253 (c).