This action involves a dispute between two tenants in a small shopping plaza in East Hartford. On January 12, 1979, Camarco Family Bake Shop, Inc. (Camarco) entered into a lease agreement with George B. Kaplan, d/b/a Sutton Realty Co. (Kaplan). Section 8.1 of that lease provides that "[t]he Demised Premises shall only be used for the purposes of operating a bakery." On January 1, 1981, Gino's Pizza of East Hartford, Inc. (Gino's) entered into a lease agreement with Kaplan.
At Gino's request, on August 25 and December 8, 1981, Kaplan wrote to Camarco informing it that the installation of a grill was a violation of its lease and demanding that it cease operating as a restaurant. When Camarco refused, Gino's instituted this suit against Kaplan seeking specific performance of the restrictive covenant and a mandatory injunction directing Kaplan to enforce the lease. In response Kaplan filed a third party complaint against Camarco alleging a violation of their lease and requesting a permanent injunction prohibiting Camarco from operating as a restaurant, indemnification for any judgment in favor of Gino's, damages, costs, expenses and attorneys' fees including attorneys' fees for having to defend against Gino's.
The trial court, Hale, J., ordered specific performance by Kaplan of article VIII of the Gino's lease, issued an injunction ordering Kaplan to take action to prevent Camarco from operating as a restaurant, and ordered Kaplan to pay all of Gino's legal costs and $1450 in attorneys' fees. The court then ordered specific performance by Camarco of § 8.1 of its lease, issued an injunction prohibiting Camarco from using a grill to provide breakfast or otherwise operating as a restaurant,
Camarco contends that it did not violate its lease with Kaplan because the lease was rendered ambiguous by Kaplan's alleged acquiescence in the operation of the breakfast counter. Camarco submits that it was thus reasonable for it to interpret the lease to permit its breakfast operation as part of its bakery business. Camarco urges us to resolve this ambiguity against Kaplan as the drafter of the contract. See, e.g., Simses v. North American Co. for Life and Health Ins., 175 Conn. 77, 85, 394 A.2d 710 (1978).
The trial court did not find an ambiguity in this lease and neither can we. "[C]ontractual terms are to be given their ordinary meaning and when the intention conveyed is clear and unambiguous, there is no room for construction." Southern New England Contracting
Camarco next claims that the trial court erred in issuing the injunction because, by excluding evidence about the cost of the installation of the grill, the court failed to weigh the equities. We do not agree.
When presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable. Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 21, 376 A.2d 381 (1977). "When one has gone on wrongfully in a wilful invasion of another's rights in real property, the latter is entitled to have his property restored to its original condition even though the wrongdoer would thereby suffer great loss." Id., quoting Tucker v. Howard, 128 Mass. 361, 363 (1880). The wrongdoer should in no way benefit from his actions. Id.
In this case, Camarco wilfully violated an unambiguous provision in its lease. When this violation was called to its attention by Kaplan it not only failed to desist, it proceeded to make the grill operational and expand its operation. We cannot say that the court abused its discretion in excluding the evidence and issuing the injunction.
In considering Camarco's final claim that the court erred in ordering Camarco to pay attorneys' fees we must divide the award into three parts: (1) the order to Kaplan to pay the $1450 in attorneys' fees that Gino's incurred by suing Kaplan; (2) the order to Camarco to indemnify Kaplan for Gino's fees; and
We have reviewed Kaplan's exhibits that contain a breakdown of the $935.50 in fees. Although we are not able to ascertain the exact amounts, it is clear that a portion of that fee is for services provided in defending against Gino's and a portion is for services provided in suing Camarco.
That part of the award, however, that covers Kaplan's attorneys' fees for defending against Gino's is correct. In the context of indemnification
It is necessary for us to consider the remaining awards together because for us to determine whether the court erred in ordering Camarco to indemnify Kaplan for having to pay Gino's fees, we must determine whether the court erred in ordering Kaplan to pay Gino's $1450 in fees. This, however, presents us with a procedural wrinkle. Because Kaplan did not appeal from the judgment against it, that award of fees is arguably not before the court. The question arises whether Camarco, in challenging the order of indemnity, can raise the propriety of the judgment against Kaplan. We hold that it can.
To hold otherwise would be anomalous. Kaplan could have appealed and had it done so the award of fees to Gino's would have been reversed on the same ground as described above—each party is to pay its own fees. Gionfriddo v. Avis Rent A Car System, Inc., supra. Kaplan's failure to appeal should not result in Camarco, as indemnitor, having to pay an erroneous award. Hence, Camarco, by challenging the order to indemnify Kaplan, can attack the underlying award as erroneous. In so holding we rely on the reasoning of Kicklighter v. Nails By Jannee, Inc., 616 F.2d 734 (5th Cir. 1980). In that case, the court allowed a third party defendant to assert on appeal claims of error in the main case (i.e., plaintiff v. defendant/third party plaintiff) even though the defendant/third party plaintiff did not appeal from that judgment. In so holding the court
In light of our previous discussion on attorneys' fees we find that the court erred in ordering Kaplan to pay Gino's fees and hence the order to Camarco to indemnify Kaplan was erroneous. This presents a second procedural wrinkle: the scope and effect of our finding of reversible error. The court erred in ordering Kaplan to pay Gino's attorneys' fees and hence it erred in ordering Camarco to indemnify Kaplan. Since Camarco properly appealed and prevailed on its claim, that part of the judgment against Camarco is reversed. At issue is whether the judgment against Kaplan, who did not appeal, should also be reversed. Once again, we are guided by Kicklighter v. Nails By Jannee, Inc., supra. Faced with this exact question, the fifth circuit held: "Because the third-party defendant's liability is derivative of defendant's liability, and because the reversal of the judgment against the third-party defendant is based solely on an error in the main case, i.e., plaintiff's case against defendant, we hold that third-party
There is error in part, the judgment in the main case of Gino's v. Kaplan is set aside only with respect to the award of attorneys' fees. The judgment in the case of Kaplan v. Camarco is set aside only with respect to attorneys' fees and a new trial is ordered limited to the determination of Camarco's liability for the fees Kaplan incurred in defending against Gino's.
In this opinion the other judges concurred.
Second, as a special defense Camarco pleaded that Kaplan and Gino's acquiesced in the installation of the grill. The court did not expressly rule on this defense and Camarco does not assign this as error. Instead it contends that assuming arguendo that its activity was in violation of its lease, because Kaplan acquiesced in this conduct "the restrictive anti-competition covenant should not operate to prohibit the operation of Camarco's breakfast counter." Again, Camarco has misread the judgment. The court enjoined the use of the grill "or otherwise operating a restaurant." It did not enjoin the use of the breakfast counter or the service of coffee until 11 a.m. together with the consumption on the premises of bakery products. Moreover, even if we were to construe Camarco's claim to be a challenge to that part of the injunction that prohibits the use of the grill, there is nothing in the record to support the defense that Kaplan or Gino's acquiesced in the use or installation of the grill. To the contrary, the record reveals immediate and continued objection by both parties to this action.