Appellate Court of Connecticut, Ac 35713, August 12, 2014: Attorney’s fees awarded to historic commission.
Sciame was ordered by the local Historic District Commission (Commission) to remove certain renovations on a property in a historic district. When he failed to comply, the commission sued. After a trial on the issues found for the commission, and trial and appellate rejection of a counterclaim by Sciame, the trial court ordered Sciame to pay the Commission’s attorney’s fees under the following statute (General Statutes § 7-147h (b)) (emphasis added):
“The owner or agent of any building, structure or place where a violation of any provision of this part or of any regulation or ordinance adopted under said sections has been committed or exists . . . shall be fined not less than ten dollars nor more than one hundred dollars for each day that such violation continues. . . All costs, fees and expenses in connection with actions under this section may, in the discretion of the court, be assessed as damages against the violator, which, together with reasonable attorney’s fees, may be awarded to the historic district commission which brought such action. . . .”
At issue on appeal was, first, whether the trial court’s failure to impose fines on Sciame means that the court could not properly award attorney’s fees to the commission. This question turned on whether the statute’s wording, “The owner . . . shall be fined,” is mandatory (a fine must be imposed) or directory (a fine may be imposed). The court held that the core purpose of the statute is to provide a means of enforcement and the imposition of daily fines is not of the essence of the purpose of the statute. The court therefore concluded that a fine was not required, and therefore the award of attorney’s fees did not depend upon the imposition of a fine.
The next issue was whether attorney’s fees could be awarded only if the defendant was found to have “violated” the commission’s order. The trial court had not labeled Sciame a violator, but had ordered “compliance” with the commission’s order. The court held that the trial court’s order of “compliance,” standing alone, “is sufficient to implicate the court’s authority under § 7-147h (b), including the discretion to award attorney’s fees.” Thus, attorney’s fees could be awarded to the commission for its successful enforcement action of its order.
The last issue was whether the trial court improperly awarded attorney’s fees related to the commission’s successful defense against Sciame’s counterclaim. Sciame argued that a counterclaim is a distinct legal action, and that there is no statutory authority for the award of attorney’s fees in such an action. The court, however, agreed with the commission that Sciame’s litigation strategy in choosing to bring causes of action as a counterclaim to the enforcement action necessarily means that the attorney’s fees related to the counterclaim were incurred within the enforcement action pursuant to § 7-147h.
Accordingly, the court upheld the award of attorney’s fees to the commission.
Decision available at http://www.jud.ct.gov/external/supapp/Cases/AROap/AP152/152AP451.pdf.