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Sisto v. America Condominium Association, Inc.

Superior Court of Rhode Island

April 8, 2015


Newport County Superior Court

For Plaintiff: Robert D. Wieck, Esq.

For Defendant: Robert C. Shindell, Esq. C. Alexander Chiulli, Esq.



In its November 20, 2014 decision in the above-captioned matter, [1] this Court found that it possessed subject matter jurisdiction to award attorney fees incurred in defending the anti-SLAPP judgment upheld on appeal. Defendants America Condominium Association, Inc. (America Condominium), Natalie D. Volpe, Mary C. Connolly, Diane S. Vanden Dorpel, Edmond F. McKeown, and Sandra M. Conca (collectively, Defendants) have submitted a request for $29, 748.65 in counsel fees, asserting that this amount represents such appellate fees. Now, the Court here determines the amount of fees to be awarded. Jurisdiction is pursuant to G.L. 1956 §§ 9-33-1, et seq.

The instant matter arises out of Plaintiff Bennie Sisto's (Mr. Sisto) proposal to expand his townhouse in the condominium community governed, in part, by Defendants. [2] Essentially, Mr. Sisto filed suit against Defendants alleging slander of title in response to Defendants' letter to the Coastal Resources Management Council (CRMC), claiming, inter alia, that Mr. Sisto did not own the land on which the expanded townhouse was proposed. In response, Defendants moved under Rhode Island's anti-SLAPP (Strategic Litigation Against Public Participation) statute, asserting that Mr. Sisto's suit was brought solely to interfere with their participation in a matter of public concern. On appeal, our Supreme Court was faced with two distinct issues: (a) whether the anti-SLAPP action was providently granted; and (b) whether, under the Rhode Island Condominiums Act, Mr. Sisto could expand his townhouse without the consent of Defendants. Upon confirmation of the anti-SLAPP judgment, the issue now before the Court is the award of appellate fees. Sisto, 68 A.3d at 617 (affirming "the judgment of the Superior Court . . . with respect to the anti-SLAPP issue").

The party seeking such an award "carr[ies] [the] burden of proof regarding the reasonableness of the attorney's fees." Peckham v. Hirschfeld, 570 A.2d 663, 670 (R.I. 1990); see also Phetosomphone v. Allison Reed Grp., Inc., 984 F.2d 4, 6 (1st Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)) (holding that "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates"). Indeed, "a fee application must be accompanied by documentation . . . sufficient to satisfy the court . . . that the hours expended were actual, nonduplicative and reasonable, . . . and to apprise the court of the nature of the activity and the claim on which the hours were spent." Matter of Schiff, 684 A.2d 1126, 1131 (R.I. 1996) (internal citations omitted).

In calculating attorney's fees, "[t]he starting point or 'lodestar' for determining the reasonableness of a fee is 'the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Id. (quoting Hensley, 461 U.S. at 433); see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (stating that the "lodestar figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence") (internal citations omitted). In order to locate this guiding light-i.e., determine the reasonableness of a particular fee-the Court "consider[s] the factors enumerated in Rule 1.5" of the Supreme Court Rules of Professional Conduct. Keystone Elevator Co. v. Johnson & Wales Univ., 850 A.2d 912, 921 (R.I. 2004). Such factors include "the time and labor required; the novelty and difficulty of the questions involved; the skill requisite to perform the legal service properly; the amount involved and the results obtained; and the time limitations imposed by the client or by the circumstances." Id. In order to qualify the reasonableness of a particular award, "attorneys 'are competent to testify as experts in determining what is a reasonable charge for legal services rendered.'" Colonial Plumbing & Heating Supply Co. v. Contemporary Constr. Co., 464 A.2d 741, 744 (R.I. 1983) (quoting Cottrell Emps. Credit Union v. Pavelski, 106 R.I. 29, 35, 255 A.2d 162, 165 (1969)). An affidavit submitted by counsel may constitute such testimony. Id. (citing Stewart v. Indus. Nat'l Bank, 458 A.2d 675, 676 (R.I. 1983)).

Rhode Island's anti-SLAPP statute provides, "the court shall award the prevailing party costs and reasonable attorney's fees, including those incurred for the motion and any related discovery matters." Sec. 9-33-2(d). "The statute does not provide, however, . . . a specific measure of reasonable attorneys' fees." Karousos v. Pardee, 992 A.2d 263, 272 (R.I. 2010). As such, "the amount awarded in counsel fees is within the sound discretion of the trial judge in light of the circumstances of each case[.]" Id. (quoting Schroff, Inc. v. Taylor–Peterson, 732 A.2d 719, 721 (R.I. 1999)). Nevertheless, the Court remains mindful that "[a] request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437.

Here, to support Defendants' request, one of their attorneys, Timothy J. Groves (Mr. Groves), has submitted an affidavit attesting to the calculation of $29, 748.65 as well as the reasonableness of this award. Accompanying the affidavit is a redacted copy of the relevant billing statements. An unredacted copy of these billing records has been provided to the Court for in camera review.

Mr. Sisto asserts that the total hours billed exceeds that amount reasonably necessary to defend the anti-SLAPP judgment on appeal.[3] He contends that-in light of the fact that Defendants' attorneys worked contemporaneously on the anti-SLAPP litigation and a tangentially-related declaratory judgment action on review by our Supreme Court in Sisto, 68 A.3d 603-M');"> 68 A.3d 603-Mr. Groves failed to adequately parse the time spent defending the anti-SLAPP judgment in the billing records. Mr. Sisto also contends that the hours billed are unreasonably high in light of the lack of novelty and difficulty of the questions involved in defending the anti-SLAPP judgment. Further, he asserts that incurring a fee of $29, 748.65 to defend a judgment of $9685.31 is plainly unreasonable. This Court examines each of Mr. Sisto's arguments in turn.

Billing of Non-Anti-SLAPP Matters

Mr. Sisto contends that Mr. Groves "lumped" time spent on the declaratory judgment action with that spent on the anti-SLAPP appeal in his accounting of the requested fee award. Specifically, Mr. Sisto asserts that much of the listed time is wholly unrelated to the anti-SLAPP appeal. Further, he argues that many of the entries listed amalgamate work spent on the declaratory judgment appeal with that involving the anti-SLAPP action. Mr. Groves has attested that this calculation does not include any fees "exclusively attributable" to the work performed on the declaratory judgment action. (Groves Aff., ¶ 6.)

Preliminarily, the Court notes that only those fees incurred relating to the anti-SLAPP litigation may be properly awarded. Sec. 9-33-2(d); see Dauray v. Mee, No. 2013-135-APPEAL, 2015 WL 500832, at *12, ___A.3d___ (R.I. Feb. 6, 2015) (holding that "[a]bsent express statutory authority, counsel fees are not awardable as part of the costs of litigation") (internal citations omitted); Bonner v. Guccione, 178 F.3d 581, 597 (2d Cir. 1999) (holding that "courts must guard against awarding attorney's fees where [the legislature] has not authorized [them]") (internal citations omitted); see also Christian Research Inst. v. Alnor, 81 Cal.Rptr.3d 866, 874 (Cal.App. 4th Div. 2008) (upholding trial justice's refusal to "reimburse[] for non-anti-SLAPP efforts"); Polay v. McMahon, 468 Mass. 379, 390 (2014) (limiting request for attorney's fees on appeal encompassing a number of issues "to the costs and fees incurred in defending the [anti-SLAPP] fee award"). Indeed, considering the General Assembly's intent behind §§ 9-33-1, et seq. and Rhode Island's typically "staunch adherence to the 'American rule[, ]'" Moore v. Ballard, 914 A.2d 487, 489 (R.I. 2007), "unrelated claims [ought to] be treated as if they had been raised in separate lawsuits" for the purposes of a fee award. Hensley, 461 U.S. at 435. Nevertheless, where multiple claims "involve a common core of facts or [are] based on related legal theories[, ] [m]uch of counsel's time will be devoted generally to the litigation as ...

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