AMERICA CONDOMINIUM ASSOCIATION, INC., and CAPELLA SOUTH CONDOMINIUM ASSOCIATION, INC., Plaintiffs,
STEFANIA M. MARDO, as Trustee of the Constellation Trust-2011, Defendant, and HARBOR HOUSES CONDOMINIUM ASSOCIATION, INC., Intervenor.
Plaintiff: Thomas W. Lyons, III, Esq.
Defendant: Robert D. Wieck, Esq. Edmund A. Allcock, Esq. for
within Motion for Attorneys' Fees and Costs was filed by
Plaintiffs, America Condominium Association, Inc. (America),
and Capella South Condominium Association, Inc. (Capella)
(collectively, Plaintiffs), following our Supreme Court's
Opinion and remand in American Condominium Association,
Inc., v. Mardo, 140 A.3d 106 (R.I. 2016). Jurisdiction
is pursuant to G.L. 1956 § 8-2-14.
Rhode Island Supreme Court succinctly described the
condominium associations involved in this dispute as follows:
'"Goat Island South Condominium [GIS] 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."'
American Condominium Association, Inc., 140 A.3d at
109 (quoting Sisto v. American Condominium Association,
Inc., 68 A.3d 603, 606 (R.I. 2013)) (Sisto I).
Stefania M. Mardo is the Trustee of a Trust that owns a
condominium unit located in the Harbor Houses complex. On
April 19, 2011, Plaintiffs filed a four-count Verified
Complaint for Injunctive Relief against Ms. Mardo, as
Trustee, alleging that she unlawfully had expanded the unit
and thereby impermissibly had intruded onto GIS's limited
common elements. The Complaint alleged: (1) a violation of
Rhode Island's Condominium Act, G.L. 1956 chapter 36.1 of
title 34 (the Act) (Count I); (2) breach of the Goat Island
South Second Amended and Restated Declaration of Condominium
Goat Island South (GIS SAR) and the Second Amended and
Restated Declaration of Condominium, Harbor Houses
Condominium (the HH SAR) (Count II); (3) a violation of
restrictive covenants (Count III); and (4) common law
trespass (Count IV). On May 9, 2011, Harbor Houses filed a
Motion to Intervene to protect its interests, which motion
the Court granted. As there were no allegations against
Harbor Houses, it did not file an answer to the Complaint.
a six-day bench trial, the Court issued a written Decision on
August 22, 2012, finding a violation of the Act, breach of
the condominium declarations, and a continuing trespass. In
view of the latter finding, the Court declared Count
III-violation of restrictive covenants-to be moot.
Thereafter, the Court entered Final Judgment in favor of
Plaintiffs on Counts I, II, and IV, and deemed Count III to
be moot. The Court denied Plaintiffs' request for a
mandatory permanent injunction requiring the removal of the
trespass, enjoined the Trust from further expansion, and
denied Plaintiffs' request for attorneys' fees and
Plaintiffs timely appealed the Final Judgment to the Rhode
Island Supreme Court. They raised three issues on appeal;
namely, that this Court (1) erred in failing to order a
mandatory permanent injunction requiring removal of the
trespass; (2) erred in declaring Count III of the Complaint
moot; and (3) erred in failing to award attorneys' fees
and court costs pursuant to the GIS SAR. The Trust
cross-appealed, contending that this Court erred in finding
that the Trust had breached the GIS SAR and in finding that
there existed a continuing trespass.
subsequent Opinion, our Supreme Court held that the GIS SAR
unequivocally prohibited unit expansion without the unanimous
consent of the unit owners. The Supreme Court further held
that although the Trust had committed a continuing trespass,
the Superior Court had acted within its discretion when it
both declined to order a mandatory permanent injunction
requiring removal of said trespass and declared that Count
III of the Complaint was moot. The Supreme Court additionally
held that because the Trust had breached § 11.1(b) of
the GIS SAR, the Superior Court erred in failing to award
attorneys' fees and court costs pursuant to § 11.3
of the GIS SAR. The court denied the Trust's
cross-appeal, vacated the attorneys' fees portion of the
Final Judgment, and remanded the matter to the Superior Court
for a determination of attorneys' fees and court costs.
January 20, 2017, the Trust filed a Motion to Amend Answer
and Defenses and to Add Counterclaims. On the same day, it
filed an objection to an award of attorneys' fees and
court costs, and it requested the Court to only award nominal
attorneys' fees and court costs to Plaintiffs. The
March 31, 2017, Plaintiffs' new counsel, Thomas W. Lyons
(Attorney Lyons), made a joint demand for payment of the
entirety of Plaintiffs' attorney fees and court costs in
the underlying matter, as well as a request for reimbursement
of reasonable fees and court costs incurred in collecting
said payment. (Demand Letter, Mar. 31, 2017.) Thereafter, on
April 12, 2017, Plaintiffs filed a Motion for Attorneys'
Fees and Costs with this Court, as well as reimbursement of
their reasonable costs and attorneys' fees incurred in
pursuing those fees. In response, on May 25, 2017, Harbor
Houses filed a Motion to Assert Counterclaims against
7, 2017, the Trust deposed the attorney who was
Plaintiffs' only proposed sole expert witness (expert
attorney). During the deposition, the following colloquy took
"Q. You claim that there are $233, 000 in attorneys'
fees that are reasonably assessed - or I think reasonably and
necessarily assessed against [the Trust]; correct?
"COUNSEL FOR PLAINTIFFS: Objection.
"Q. That was the number you said?
"A. The number is right. I don't know who is
responsible for paying. I haven't gotten into that, who
is responsible for paying.
"Q. Do you think it's relevant to figure out whether
or not Harbor Houses had affirmative relief sought against it
in the Trial Court in order to arrive at that $233, 000
"COUNSEL FOR PLAINTIFFS: Objection.
"A. I don't have an opinion on that.
"Q. So if Harbor Houses did not have any affirmative
relief sought against it, and there were time entries
relating to Harbor Houses, would it be your opinion that they
would still be properly included in the $233, 000 total?
"COUNSEL FOR PLAINTIFFS: Objection.
"A. I don't have an opinion . . . I won't give
an opinion on what should be allocated, what should be
excised from it, whether there are more or less."
(Expert Attorney Dep. Tr. 119-121, June 7, 2017.)
expert attorney later stated that he included "whatever
is listed in the bills[, ]" and that he "didn't
make the allocation or separation." Id. at 121
and 122. Counsel for the Trust then asked the expert
attorney: "You don't even know whether or not any
claims have been asserted against Harbor Houses in this
case?" Id. at 122. The expert attorney
responded: "I didn't review that, no."
19, 2017, Harbor Houses objected to Plaintiffs' Motion
for Attorneys' Fees, asserting that Plaintiffs never
raised any affirmative claims against Harbor Houses;
consequently, it averred that judgment did not, and could
not, enter against Harbor Houses as to any of the counts
contained in the Complaint. It additionally contended that
because attorneys' fees only were available as a result
of the Trust's breach of the GIS SAR, in which Harbor
Houses played no part, Plaintiffs are not entitled to
attorneys' fees and court costs from Harbor Houses.
Accordingly, Harbor Houses requested an award of
attorneys' fees from Plaintiffs for defending
Court commenced a hearing on the matter on August 22, 2017.
The first order of business was for the Court to declare that
the remand proceedings would strictly be limited "to a
determination of what amount of attorney's fees should be
awarded to the plaintiffs based on the Trust's breach of
the GIS SAR[.]" (Hr'g Tr. at 13, Aug. 22, 2017) (Tr.
I.) In so determining, the Court impliedly denied the Motions
to Assert Counterclaims and the Motions for Attorneys'
Fees filed by the Trust and Harbor Houses. On August 25,
2017, Plaintiffs filed a Motion to Withdraw Their Motion for
Attorneys' Fees Against Harbor Houses.
hearing, Plaintiffs presented its expert attorney to testify
about the reasonableness of the attorneys' fees from the
law firm Barton Gilman, LLP, formerly Taylor, Duane, Barton
and Gilman LLP (Barton Gilman, LLP). He testified that he has
been practicing condominium law since approximately 1973, and
that he currently represents approximately sixteen
condominium associations. Id. at 17 and 18. He
further testified that he reviewed all the legal invoices
that he received from Plaintiffs' attorneys, dated
approximately March 2010, to December 12, 2016. Id.
at 23-24. He stated that although he charges $295 per hour,
his informal survey of other attorneys in the same field of
practice revealed that the going rates varied between $300 to
$365 per hour. Id. at 22. Thus, he concluded that
[t]here was nothing unusual or unreasonable" about the
rates charged by Plaintiffs' attorneys, and that in fact
their rates of $130-$250 per hour "were really quite
modest." Id. at 24.
expert attorney testified that he omitted from consideration
any invoice amounts that were unrelated to the case, such as
charges for lobbying on a proposed house bill before the
General Assembly, as well as charges for a tangential issue
involving another unit owner. Id. at 27. He
subtracted $24, 416.55 in unrelated charges and concluded
that the fair and reasonable fee in this matter amounted to
$233, 688.44. Id. at 30-31. He then testified:
"I was impressed with three things, not only the
rates, which I thought were fair, I thought [the main
attorney's] rate was probably half of what the value of
his work was. He was up against a team of a number of
prestigious, experienced trial attorneys, and from what I
could read from the invoices, he was standing his ground
alone and responded well, so I was impressed with
that." Id. at 31.
hearing reconvened on August 29, 2017. Before Plaintiffs'
expert attorney resumed his testimony, the Court accepted a
proposed Order from Plaintiffs' counsel granting
Plaintiffs' Motion to Withdraw their Motion for
Attorneys' Fees against Harbor Houses. (Hr'g Tr. at
34, Aug. 29, 2017) (Tr. II). The Order was duly entered on
the same day.
Plaintiffs' expert attorney testified that, in
calculating reasonable attorneys' fees, he considered the
factors contained in Rule 1.5 of the Supreme Court Rules of
Professional Conduct, entitled
"Fees." Id. at 35. In doing so, he graded
each factor on a basis of one to five, with five being the
most difficult. Id. He testified that being familiar
with condominium law, he basically is aware of its
complexities and how much time would be necessary to address
a particular issue. Id. at 37. He concluded that the
total amount of compensable attorneys' fees in this case
(i.e., without the deductions) amounted to $258,
104.95, and that his own fees up until the previous week
totaled $5522. Id. at 39-40. However, during
cross-examination, the expert attorney acknowledged that
affidavits filed by the attorneys who had actually worked on
the case stated that their fees amounted to $224, 960, which
was nearly $9000 lower than the final fee that the expert
attorney calculated. Id. at 53-54; see also
Affidavit of Robert C. Shindell and Affidavit of Timothy J.
subsequent cross-examination, the expert attorney admitted
that he did not read any of the pleadings in this case,
including the Complaint. (Hr'g Tr. at 73, 99, 104, Nov.
1, Dec. 4 and Dec. 7, 2017) (Tr. III.). He stated that he
relied upon the findings of fact contained in this
Court's August 22, 2012 Decision, as affirmed by the
Supreme Court in American Condominium Association,
Inc. 140 A.3d 106. (Tr. III at 76.) In addition, he
stated that he had "focused almost exclusively on the
Supreme Court's directive in this particular case that
remanded it to this Court." Id. at 92. The
expert attorney also admitted that when he made his
calculations, he had not been familiar with the term
"lodestar," as it pertains to calculating
reasonable attorneys' fees; however, he believed that he
satisfied lodestar requirements when he established and
analyzed fair and reasonable fees in this case. Id.
at 86, 89; see also id. at 212 ("During [my]
deposition, when the lodestar concept was explained, I said
that is exactly what I did.").
expert attorney further testified that he did not delete any
fees or services related to the counts for trespass,
statutory violation, or restrictive covenant, because he
believed that all four of the counts were intermingled, and
it would be "unrealistic" to specifically allocate
fees on a count-by-count basis. Id. at 98-99; 102;
see also id. at 133 (stating "I made no
distinction between the various claims, the various counts,
and the billings. I did not segregate based on a particular
claim or a particular count in the
complaint"). Counsel for the Plaintiffs stipulated that
the expert attorney did not think it necessary to distinguish
or identify which services were related to any given count.
Id. at 103. The expert attorney admitted that he did
not delete block billing or lumping entries; rather, the only
fees that he eliminated were those that he considered not
directly involved in the case. Id. at 136-37.
Accordingly, he considered all of the remaining invoices to
be reasonable. Id. at 214.
Court has before it multiple exhibits, including affidavits
from counsel for Barton Gilman, LLP; an affidavit and
deposition testimony from the expert attorney; and multiple
invoices submitted by the parties. After carefully
considering the evidence and the testimony presented at the
hearing, the Court makes the following determinations.
Supreme Court has declared that
'"When a case has been once decided by this court on
appeal, and remanded to the [Superior Court], whatever was
before this court, and disposed of by its decree, is
considered as finally settled. The [Superior Court] is bound
by the decree as the law of the case, and must carry it into
execution according to the mandate. That court cannot vary
it, or examine it for any other purpose than execution; or
give any other or further relief; or review it, even for
apparent error, upon any matter decided on appeal; or
intermeddle with it, further than to settle so much as has
been remanded. * * * But the [Superior Court] may consider
and decide any matters left open by the mandate of this
court."' Sisto v. American Condominium
Association, Inc., 140 A.3d 124, 128 (R.I. 2016)
(Sisto II) (quoting Pleasant Management, LLC v.
Carrasco, 960 A.2d 216, 223 (R.I. 2008)).
our Supreme Court discussed above is the "mandate
rule." Pursuant to such rule, this Court must first
determine exactly what the Supreme Court mandated in the
opinion it issued in American Condominium Association,
Inc., 140 A.3d 106 before assessing attorneys' fees
and court costs.
Trust contends that Plaintiffs are entitled only to those
fees that specifically relate to the breach of the GIS SAR;
namely, the unopposed $900 worth of fees. The Trust further
maintains that, due to the inherent deficiencies in
Plaintiffs' Motion for Attorneys' Fees, coupled with
the failure of Plaintiffs to provide competent evidence to
support their motion, the Court should award only those
Plaintiffs counter that the factual and legal issues of their
four-count Complaint are so closely interrelated that
Plaintiffs are entitled to an award of all of their
attorneys' fees and court costs. Specifically, they seek
the Court to award $225, 235.23 in attorneys' fees and
$3, 685.15 in costs for litigating the underlying matter, as
well as an additional $38, 165 in attorneys' fees and
$12, 175.38 in costs for litigating the fee motion. The
Plaintiffs also seek post-judgment interest on the entire
settled law that Rhode Island has "'staunch[ly]
adhere[d] to the 'American rule' that requires each
litigant to pay its own attorney's fees absent statutory
authority or contractual liability."' Tri-Town
Construction Company, Inc. v. Commerce Park Associates 12,
LLC, 139 A.3d 467, 478 (R.I. 2016) (quoting Shine v.
Moreau,119 A.3d 1, 8 (R.I. 2015)). Generally,
"[g]iven a proper contractual, statutory, or other legal
basis to do so, the award of attorney's fees rests within
the sound discretion of the trial justice."
Women's Development Corp. v. City ofCentral
Falls, 764 A.2d 151, 162 (R.I. 2001). In this case, the
Rhode Island Supreme Court determined that Plaintiffs are
entitled to fees under the GIS SAR. See Mardo, 140
A.3d at 117. However, even "if there is a contractual
basis for awarding attorney's fees," this