PRESENT: All the Justices
DORIS MOZLEY
v. Record No. 012884 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 1, 2002
THE PRESTWOULD BOARD OF DIRECTORS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
In this appeal, we consider whether the Virginia Condominium
Act, Code §§ 55-79.39 through –79.103 (the Act), requires an award
of attorneys' fees and costs to the prevailing party in a
declaratory judgment suit brought by a condominium unit owner
against a unit owners' association to determine whether the
association properly rendered an assessment for the replacement of
certain windows, which the association contended were "limited
common elements" under the Act.
The Prestwould Condominium (the Prestwould) is a multi-unit
condominium located in the City of Richmond. Doris Mozley owns a
condominium unit in the Prestwould.
In August 2000, the Prestwould Board of Directors (the Board),
the executive organ of the Prestwould Condominium Unit Owners'
Association, solicited bids to replace 13 windows in four
individual condominium units at the request of the owners of those
units. The Board accepted a $42,000 bid from a contractor to
replace those windows and assessed this cost proportionally against
all the unit owners of the Association. Mozley, who was not one of
the four unit owners who requested replacement windows, was
assessed an amount for her proportional share of the replacement
costs.
Mozley filed a bill of complaint for declaratory relief in the
Circuit Court of the City of Richmond asking the chancellor to
declare, among other things, that she should not be assessed a
portion of the cost for the replacement windows in the four
individual units because those windows were not "limited common
elements" within the meaning of the Act. * She requested a further
declaration that the cost for these windows should have been
assessed only against the owners of those individual units. Mozley
also sought an award of attorneys' fees and costs under the Act.
In response, the Board filed an answer and a cross-bill for
declaratory judgment seeking various relief, including a
declaration that the replacement windows were "limited common
elements" for which Mozley was required to pay the proportional
amount assessed. The Board also asked the chancellor to order
Mozley to pay the Board's reasonable attorneys' fees and costs.
Mozley and the Board filed cross-motions for summary judgment.
After the Board filed its summary judgment motion, Mozley paid the
full amount assessed against her and requested a nonsuit of her
bill of complaint.
*
"Limited common elements" are defined in Code § 55-79.41 as "a
portion of the common elements reserved for the exclusive use of
those entitled to the use of one or more, but less than all, of the
units."
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At a hearing on the motions, the chancellor denied Mozley's
motion for nonsuit and her motion for summary judgment. The
chancellor granted the Board's cross-motion for summary judgment on
the ground that the replacement windows were "limited common
elements" within the meaning of the Act. At that hearing, the
Board also argued that it was entitled to an award of attorneys'
fees and costs under two different statutes, Code §§ 55-79.53(A)
and –79.84.
Code § 55-79.53(A) states:
The declarant, every unit owner, and all those entitled
to occupy a unit shall comply with all lawful provisions
of this chapter and all provisions of the condominium
instruments. Any lack of such compliance shall be
grounds for an action or suit to recover sums due, for
damages or injunctive relief, or for any other remedy
available at law or in equity, maintainable by the unit
owners' association, or by its executive organ or any
managing agent on behalf of such association, or, in any
proper case, by one or more aggrieved unit owners on
their own behalf or as a class action. A unit owners'
association shall have standing to sue in its own name
for any claims or actions related to the common elements
as provided in subsection B of § 55-79.80. The
prevailing party shall be entitled to recover reasonable
attorneys' fees and costs expended in the matter.
Code § 55-79.80(B) provides, in relevant part:
Except to the extent prohibited by the condominium
instruments, and subject to any restrictions and
limitations specified therein, the executive organ of the
unit owners' association, if any, and if not, then the
unit owners' association itself, shall have the
irrevocable power as attorney-in-fact on behalf of all
the unit owners and their successors in title with
respect to the common elements, including without
limitation the right, in the name of the unit owners'
association, . . . (ii) to assert, through litigation or
otherwise, defend against, compromise, adjust, and settle
any claims or actions related to common elements.
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Code § 55-79.84 states, in relevant part:
A. The unit owners' association shall have a lien on
every condominium unit for unpaid assessments levied
against that condominium unit in accordance with the
provisions of this chapter and all lawful provisions of
the condominium instruments.
. . . .
E. The judgment or decree in an action brought pursuant
to this section shall include, without limitation,
reimbursement for costs and attorneys' fees of the
prevailing party.
The chancellor held that Code §§ 55-79.53(A) and –79.84 each
mandated an award of attorneys' fees and costs in favor of the
Board. He further held that the amount requested by the Board for
attorneys' fees and costs was reasonable and entered final judgment
for the Board in the amount of $15,855.08. Mozley appeals from the
chancellor's judgment.
Under basic rules of statutory construction, we consider the
language of these statutes to determine the General Assembly's
intent from the words contained therein, unless a literal
construction would yield an absurd result. Vaughn, Inc. v. Beck,
262 Va. 673, 677, 554 S.E.2d 88, 90 (2001); Cummings v. Fulghum,
261 Va. 73, 77, 540 S.E.2d 494, 496 (2001). When a statute's
language is plain and unambiguous, we are bound by the plain
meaning of that language. Indus. Dev. Auth. v. Bd. of Supervisors,
263 Va. 349, 353, 559 S.E.2d 621, 623 (2002); Cummings, 261 Va. at
77, 540 S.E.2d at 496; Earley v. Landsidle, 257 Va. 365, 370, 514
S.E.2d 153, 155 (1999). Therefore, when the General Assembly has
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used words of a plain and definite import, courts cannot assign to
them a construction that would be tantamount to holding that the
General Assembly intended something other than that which it
actually expressed. Vaughn, 262 Va. at 677, 554 S.E.2d at 90; see
Advanced Marine Enters., Inc. v. PRC Inc., 256 Va. 106, 125, 501
S.E.2d 148, 159 (1998).
We first consider Mozley's argument that the chancellor erred
in holding that the Board was entitled to attorneys' fees under
Code § 55-79.84. She contends that this statute is not applicable
to the present case but is limited solely to actions brought by a
unit owners' association to enforce liens for unpaid assessments.
In responding to this contention during oral argument on appeal,
the Board conceded that Code § 55-79.84 did not provide express
authority for the chancellor's award of attorneys' fees.
We agree with the parties' conclusion that Code § 55-79.84
does not authorize an award of attorneys' fees to a prevailing
party in a declaratory judgment suit brought to determine whether a
particular component part of a condominium is a "limited common
element" within the meaning of the Act. Instead, the plain
language of the provision for attorneys' fees in that section
authorizes such an award only for suits brought by a unit owners'
association to enforce a lien for unpaid assessments levied against
a condominium unit owner in accordance with the Act and lawful
provisions of applicable condominium instruments. Therefore, we
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hold that the trial court erred in its construction of this
statutory provision.
Mozley also argues that the chancellor erred in relying on
Code § 55-79.53(A) to support the award of attorneys' fees and
costs. She asserts that Code § 55-79.53(A) applies only to awards
of attorneys' fees and costs in actions brought by a unit owners'
association against an individual unit owner for that owner's
failure to comply with the provisions of either the relevant
condominium instruments or the Act. Mozley contends that because
she paid the full amount assessed for the replacement windows,
without requiring the Board to obtain a judgment against her, she
is not liable to pay attorneys' fees and costs as provided by this
statute. We disagree with Mozley's arguments.
The language of Code § 55-79.53(A) is expressed in plain and
unambiguous terms. This subsection authorizes two types of
litigation. The first type concerns actions for failure to comply
with provisions contained in relevant condominium instruments or in
the Act. Such actions for noncompliance may be brought by a unit
owners' association, its executive organ or managing agent, or by
"one or more aggrieved unit owners on their own behalf or as a
class action." Id.; see also Frantz v. CBI Fairmac Corp., 229 Va.
444, 450-51, 331 S.E.2d 390, 395 (1985). The present appeal does
not involve an action of this nature because Mozley did not fail to
comply with any provision of the Act or of relevant condominium
instruments.
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The second type of litigation addressed by Code § 55-79.53(A)
authorizes a unit owners' association of a condominium to bring
suit in its own name for "any claims or actions related to the
common elements" of a condominium, as set forth in Code § 55-
79.80(B). Such suits are described by Code § 55-79.80(B) to
include, among other things, the right to assert, through
litigation or the defense against litigation, "any claims or
actions related to common elements."
The present declaratory judgment suit and cross-bill are
representative of this second type of litigation authorized by Code
§ 55-79.53(A). The Board was required to defend against Mozley's
bill of complaint seeking a declaration that the replacement
windows were not "limited common elements" as defined by the Act.
The Board's cross-bill was a separate assertion by the Board,
through litigation, of its claim that those windows were, in fact,
"limited common elements."
The text of Code § 55-79.53(A), following its authorization of
these two types of litigation, states that "[t]he prevailing party
shall be entitled to recover reasonable attorneys' fees and costs
expended in the matter." By its plain language, this provision
requires an award of attorneys' fees and costs to the prevailing
party in both types of litigation authorized by the statute.
We find no merit in Mozley's contention that the summary title
of Code § 55-79.53, "Compliance with condominium instruments,"
restricts application of that section's provision for attorneys'
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fees and costs to actions brought for noncompliance with the Act or
applicable condominium instruments. That summary title is not part
of the statute enacted by the General Assembly and, thus, has no
effect on the meaning of the body of the statute. See Mason v.
Commonwealth, 217 Va. 321, 323, 228 S.E.2d 683, 684 (1976); Brown
v. Commonwealth, 215 Va. 143, 146, 207 S.E.2d 833, 836 (1974).
Because the chancellor was required by Code § 55-79.53(A) to
award the Board its reasonable attorneys' fees and costs, we turn
now to consider Mozley's argument that the amount of the
chancellor's award was unreasonable under the circumstances of this
case. Mozley asserts that the award of $15,855.08 was unreasonable
because she paid the full assessment, thereby obviating the need
for a noncompliance action against her. She also argues that her
declaratory judgment action was not a complex matter, and notes
that no depositions were taken in the case and the parties engaged
in only one exchange of written discovery requests. Finally,
Mozley contends that because declaratory judgment suits are
remedial in nature, as recognized by the General Assembly in Code
§ 8.01-191, she should not suffer this additional penalty for
bringing her suit. We disagree with Mozley's arguments.
The mandatory provision for attorneys' fees and costs in Code
§ 55-79.53(A) places the financial burden of the litigation on the
unsuccessful party. Thus, this provision ensures that all unit
owners will not have to absorb their association's costs of
litigation simply because one unit owner brought an unsuccessful
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suit against the association. The chancellor's award to the Board
is consistent with the General Assembly's intent reflected in the
language of this statute.
We also conclude that the chancellor did not abuse his
discretion in setting the amount of the award. As the chancellor
observed, the Board was confronted with litigation that could have
had a significant negative impact on its procedures and methods of
operation. Thus, in the words of the chancellor, "[h]aving
initiated the proceeding, [Mozley] cannot now complain that
defendant and its counsel took [the suit] too seriously." Based on
the record before us, we hold that the Board met its burden of
proving that the attorneys' fees and costs it incurred were
reasonable. See Chawla v. BurgerBusters, Inc., 255 Va. 616, 623-
24, 499 S.E.2d 829, 833 (1998); Seyfarth, Shaw, Fairweather &
Geraldson v. Lake Fairfax Seven Ltd. P'ship, 253 Va. 93, 96, 480
S.E.2d 471, 473 (1997).
We also agree with the Board that it is entitled to have this
case remanded to the chancellor for an additional award of
reasonable attorneys' fees and costs incurred in defending against
Mozley's appeal. Such fees and costs are recoverable because they
were incurred in the defense of a suit related to the condominium's
common elements. See Code §§ 55-79.53(A) and -79.80(B).
For these reasons, we will affirm the chancellor's award of
attorneys' fees and costs to the Board based on the provisions of
Code § 55-79.53(A), reverse the chancellor's holding interpreting
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Code § 55-79.84, and enter judgment in the amount of $15,855.08 in
favor of the Board. We also will remand the case to the chancellor
for an award of reasonable attorneys' fees and costs incurred by
the Board in the defense of this appeal, with direction that the
chancellor enter final judgment for the total amount of attorneys'
fees awarded in this case.
Affirmed in part,
reversed in part,
and remanded.
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