America Condominium Association, Inc. et al.
Stefania M. Mardo, as Trustee of the Constellation Trust-2011 et al.
County Superior Court (NC 11-234), Melanie Wilk Thunberg,
Plaintiffs: Robert C. Shindell, Esq., C. Alexander Chiulli,
Defendants: John A. Tarantino, Esq., Edmund A. Allcock, Esq.,
Nicole J. Benjamin, Esq., Joseph Avanzato, Esq., Robert D.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
William P. Robinson III, Justice.
plaintiffs, America Condominium Association, Inc. (America)
and Capella South Condominium Association, Inc. (Capella),
appeal from a February 25, 2014 judgment issued after a
bench trial in Newport County Superior Court; that judgment
provided that the defendants, Stefania M. Mardo, as Trustee
of the Constellation Trust-2011 (the Trust) and Harbor Houses
Condominium Association, Inc. (Harbor Houses), were liable
for breach of contract and for committing a common law
trespass. The trial justice further concluded that Count
Three of the plaintiffs' complaint, which alleged that
the defendants breached restrictive covenants contained in
the Goat Island South Condominium Second Amended and Restated
Declaration of Condominium (GIS SAR), was moot and that the
plaintiffs were not entitled to an award of attorneys'
fees and costs.
plaintiffs contend on appeal that the trial justice committed
the following errors: (1) finding a continuing trespass but
failing to issue a mandatory permanent injunction requiring
the removal of the trespass; (2) finding Count Three of
plaintiffs' complaint to be moot; and (3) failing to
award attorneys' fees and costs to plaintiffs in
accordance with the GIS SAR. The defendants filed a
cross-appeal. In support of the cross-appeal, the Trust
argues that it was error for the Superior Court to have found
that defendants had breached the GIS SAR and to have found
that defendants had committed a common law
reasons set forth in this opinion, we affirm the judgment of
the Superior Court in part and we vacate that judgment in
not the first time this Court has addressed controversies at
the Goat Island South Condominium (GIS). In fact, it is the
fifth time we have been called upon to quell these seemingly
unending disagreements. See IDC Properties, Inc. v. Goat
Island South Condominium Association, Inc., 128 A.3d 383
(R.I. 2015); Sisto v. America Condominium Association,
Inc., 68 A.3d 603 (R.I. 2013); America Condominium
Association, Inc. v. IDC, Inc., 870 A.2d 434 (R.I.
2005); America Condominium Association, Inc. v. IDC,
Inc., 844 A.2d 117 (R.I. 2004). We deem it important to
reiterate once more that "[w]e are more than persuaded
that the [parties to this case] have had their day in
court-and then some" and that "[t]he time has come
for this litigation to end." IDC Properties,
Inc., 128 A.3d at 394 (internal quotation marks
omitted). In furtherance of that goal, we refer the
interested reader to our previous opinions for a full
recitation of the facts, and we confine ourselves to only
those facts that are relevant to this appeal.
purposes of this appeal, it is necessary to reiterate the
basic structure of the GIS condominiums:
"Goat Island South Condominium is comprised of three
sub-condominium residential areas-Harbor Houses Condominium,
America Condominium, and Capella South Condominium. Of the
154 total units, there are nineteen stand-alone townhouse
residence units located in Harbor Houses Condominium,
forty-six residence units in America Condominium, and
eighty-nine residence units in Capella South Condominium.
Each of these sub-condominiums is governed by a separate
association and declaration and must also adhere to the
provisions of the master declaration. Likewise, these
declarations must comply with Rhode Island's Condominium
Act, G.L.1956 chapter 36.1 of title 34." Sisto,
68 A.3d at 606.
to the findings of fact by the trial justice in the instant
case, the Trust has owned Unit 18 in Harbor Houses since
January of 2011. Harbor Houses' declaration makes it
clear that the yard which surrounds Unit 18 is designated as
a limited common element, which in the instant case means it
is "reserved for the use by one or more but fewer than
all [u]nits, and intended for the exclusive use" of Unit
18. Id. (internal quotation marks omitted). On April
19, 2011, before this Court's decision in Sisto,
68 A.3d at 603, plaintiffs filed the instant action seeking
injunctive relief to bring a halt to the expansion of Unit 18
onto a limited common element-specifically, the yard
surrounding Unit 18 on which a foundation had been built by
Unit 18's previous owners. The plaintiffs' complaint
alleged breach of the GIS SAR, violation of restrictive
covenants, common law trespass, and violation of Rhode
Island's Condominium Act, G.L. 1956 chapter 36.1 of title
34 (the Act). A bench trial was held on May 12, 17, 27, and
31, June 14, and September 22, 2011. We relate below the
salient aspects of what transpired at that trial.
The Testimony of Bennie Sisto
trial justice's decision in the instant case reflects,
Bennie Sisto is the father of trustee Stefania Mardo, and he
entered this case as "an additional trustee" prior
to the Superior Court's decision.
Sisto testified at trial, during which testimony he
acknowledged that Unit 18 was being expanded by the addition
of exterior walls. However, he further stated that the
"original expansion of Harbor Houses Number 18 was
obviously back when [the previous owners] had ownership of
the property back in 2000, 2001;" he added that his
construction was only on the "existing foundation."
Mr. Sisto conceded that his expansion of Unit 18 did expand
it past its "1988 footprint, " but he reiterated
that the expansion was confined to the existing foundation,
which was on the property when he purchased it.
Mr. Sisto's testimony that, at the time he purchased Unit
18, the foundation on which he was building was then being
used as a "patio and a deck." However, it was his
further testimony that the foundation was not intended to be
a patio or a deck but, rather, had been part of a
"proposed building expansion" by the previous
owners. He added that "a previous Court ordered that
th[e] foundation be put into the ground" but the parties
then "agreed not to complete construction until the
Court case ended." Referring to his affidavit and an
attached judgment of the Superior Court (entered as an
exhibit at trial), Mr. Sisto also testified that it was his
belief that the expansion of Unit 18 had been later
"expressly authorized" by the Superior Court
judgment attached to his affidavit.
Superior Court judgment attached to Mr. Sisto's affidavit
is dated December 14, 2009 and reflects a decision by a
Superior Court justice to the effect that the defendants in
that action (which did not include America or Capella) were
enjoined from interfering with the right of the previous
owners of Unit 18 to proceed with "renovations;"
the judgment allowed the "renovations" as laid out
in plans issued and submitted to the Harbor Houses
Condominium Board in May of 2001. It is also worth noting
that trial exhibit 8 was a decision of the GIS Board, dated
February 1, 2011, which stated that there was no objection by
any of the unit owners to the "plans for Harbor Houses #
18;" there was no assertion that the "proposed
improvements, alterations or changes would significantly
diminish the water view of such residence units as viewed
from the glass doors/windows/balconies of such residence
units." Despite the fact that the decision of the GIS
Board was dated after the Trust bought the property, that
decision is addressed to the previous owners. It was Mr.
Sisto's testimony on cross-examination that the plans he
used for the expansion of Unit 18 were actually those that
were commissioned by the previous owners, and he added that
his expansion was smaller than the expansion intended by the
Sisto's affidavit also stated that "ten (10) of the
nineteen (19) Harbor Houses unit owners have expanded over
the years, including most recently in 2008, " and he
cited specifically to the expansion of Harbor Houses Unit 10
to support the contention that the Trust was within its
rights in expanding Unit 18. However, Mr. Sisto did concede
at trial that the area he was expanding on was "owned in
undivided percentage interest" by the 154 unit owners at
GIS and that he did not have the unanimous approval of all
154 unit owners to expand his condominium.
further Mr. Sisto's testimony that, prior to his
commencing the expansion of Unit 18, Natalie Volpe, the
President of the GIS Board, communicated with him by email
regarding his expansion. Her email was entered as an exhibit
at trial. The email cited as authority the Newport County
Superior Court rulings which this Court eventually reviewed
in Sisto, 68 A.3d at 603. (The appeal was still
pending before this Court at the time when Ms. Volpe sent the
email.) The email contained the following pertinent language:
" * * * [I]f a portion of the limited common element is
to be permanently occupied, thereby necessitating a
reallocation, than [sic] the unanimous consent of
154 unit owners must be present in order to amend the
declaration. Additionally, in accordance with basic property
law, it is prohibited to permanently occupy a limited common
element to the absolute exclusion of the other 154 property
owners without their consent.
" * * * A recent ruling in Newport * * * has resulted in
an order for the construction of an addition to an existing
house be taken down. The precedent has been established.
Please do not take further action on [Unit] 18 * * * at this
time as GIS will enforce the [GIS SAR and the Act]."
Sisto testified that he understood that email to be the
personal opinion of Ms. Volpe, not the opinion of the GIS
Board, since "[t]hey did not vote on [it]."
The Remaining Pertinent Testimony at Trial
Conca testified at trial that she was the President of
America's Board. It was her further testimony that she
did not consent to the expansion of Unit 18, and she
expressed her belief that a building could not be constructed
on Unit 18's yard since it was a limited common element;
she added that such expansions would decrease the overall
ownership percentage of the common elements of each unit
owner. She further stated that at least one owner of a
different Harbor Houses condominium had been allowed to
expand in the past.
McKeown testified that he owned an America condominium and
that he did not consent to the expansion of Harbor Houses
Unit 18 onto a limited common element; he added that the
expansion of Unit 18 greatly increased the size of that unit.
Superior Court Decision
August 22, 2012 decision, the trial justice began by noting
that plaintiffs' motion for a preliminary injunction had
been "advanced to a trial on the merits." The trial
justice then proceeded to make findings of fact and
credibility determinations. She found Mr. Sisto to be a
"very genial, respectful and forbearing gentlem[a]n
[who] provided the [c]ourt with considerable information
concerning * * * the construction history of unit 18."
She noted that he acknowledged that the unanimous consent of
154 unit owners had not been obtained, but she also noted
that he had testified that he was not expanding Unit 18
beyond the existing foundation, which had been installed by
the previous owners in connection with a planned expansion.
The trial justice also noted that Mr. Sisto testified that
the expansion consisted of placing exterior walls
"'where there were no walls before'" and
that he acknowledged that the expansion was altering the
boundaries of his unit.
trial justice proceeded to find that defendants were acting
in violation of § 34-36.1-2.17(d) and § 34-36-7(b)
of the Act, which statutory provisions require unanimous
consent of all unit owners with respect to an amendment of
the GIS SAR allowing for expansion by changing of the
boundaries of any unit or the allocated interests of a unit;
she added that the GIS SAR provided that it was subject to
the Act and that, therefore, the provisions of the GIS SAR
must be interpreted to conform with the requirements of the
Act. Accordingly, she found that defendants had violated the
GIS SAR as well as the above-cited statutory provisions.
juncture, the trial justice proceeded to state: "If the
[c]ourt was permitted to view this controversy through a
purely equitable lens, a different outcome could be
considered." She noted that the expansion of Unit 18 did
not result in any view obstruction for any of the America or
Capella condominiums. She added that nine other Harbor Houses
condominiums had been expanded "without objection or
challenge from America or Capella." (Internal quotation
marks omitted.) She then granted plaintiffs' request for
injunctive relief precluding further expansion of Unit 18 but
declined to grant plaintiffs' request that the court
issue a mandatory injunction ordering the Trust to remove all
construction on Unit 18 that expanded it beyond its
"'pre-expansion footprint.'" She further
declined to award plaintiffs attorneys' fees or court
February 25, 2014, a final judgment was entered. That
judgment held: (1) that the expansion provisions of §
2.3 of the GIS SAR violated the Act and could not be
enforced; (2) that defendants had breached §§
2.3(a)(i)(A) & (M) and § 11.1(b) of the GIS SAR; (3)
that no judgment need enter on Count Three of plaintiffs'
complaint, which alleged a violation of restrictive
covenants, since the trial justice deemed that issue to be
moot; and (4) that defendants had committed a common ...