Am. Condo. Ass'n, Inc. v. Mardo

• Decision Date: 15 March 2022
• Docket Number: 2019-412-Appeal., No. 2019-413-Appeal.,NC 11-234
• Citation: 270 A.3d 612
• Parties: AMERICA CONDOMINIUM ASSOCIATION, INC., et al. v. Stefania M. MARDO, as Trustee of the Constellation Trust-2011, et al.
• Court: Rhode Island Supreme Court

270 A.3d 612

AMERICA CONDOMINIUM ASSOCIATION, INC., et al.

v.Stefania M. MARDO, as Trustee of the Constellation Trust-2011, et al.

No. 2019-412-Appeal.

No. 2019-413-Appeal.

NC 11-234

Supreme Court of Rhode Island.

March 15, 2022

Thomas W. Lyons, III, Esq., Rhiannon S. Huffman, Esq., for Plaintiffs.

Robert D. Wieck, Esq., for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Robinson, for the Court.

The plaintiffs, America Condominium Association, Inc. and Capella South Condominium Association, Inc., appeal from a September 18, 2019 final judgment of the Newport County Superior Court awarding plaintiffs what they consider to be an inadequate amount of attorneys’ fees and costs in the total amount of $25,472.33. On appeal, they contend that: (1) "[t]he Superior Court erroneously held that it could only award fees and costs that were directly and solely related to the contract claim [at issue];" and (2) "[t]he Superior Court erroneously held that it would not award [fees that a witness for the plaintiffs who testified as to the reasonableness of attorneys’ fees] incurred in rendering his opinions, or for the affidavits of [Diane S.] Vanden Dorpel and [Sandra M.] Conca, or for other relevant work." (Internal quotation marks omitted.)

The defendant, Stefania M. Mardo, as Trustee of the Constellation Trust-2011 (the Trust),¹ cross-appeals from the same September 18, 2019 final judgment. She avers on appeal that "[t]he Trial Court erred as a matter of law by awarding" attorneys’ fees to the plaintiffs for their efforts to recover attorneys’ fees in the underlying case (fees on fees). She contends that: (1) plaintiffs waived their claim for fees on fees; and (2) that the Goat Island South Condominium Second Amended and Restated Declaration of Condominium (GIS SAR) "does not permit or authorize such an award."

For the reasons set forth in this opinion, we affirm the final judgment of the Superior Court.

IFacts and Travel

This is far from the first time this Court has been called upon to contend with issues that have arisen with respect to the Goat Island South Condominium at issue in this case. See Sisto v. America Condominium Association, Inc. , 140 A.3d 124 (R.I. 2016) ( Sisto II ); America Condominium Association, Inc. v. Stefania M. Mardo, as Trustee of the Constellation Trust-2011 , 140 A.3d 106 (R.I. 2016) ( America Condo I ); 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) ( Sisto I ); 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). In view of the plethora of information provided in those opinions, we will in this opinion provide only the facts necessary to decide the issues currently before us. We reiterate, once again, and hopefully for the last time, our conviction 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).

AThe Underlying Case

On April 19, 2011, plaintiffs filed a verified complaint in this case. The complaint alleged that the Trust was expanding the condominium unit at issue—Unit 18—"onto limited common elements and thereby chang[ing] Unit No. 18's boundaries * * *." The complaint contained four counts. Count One alleged violation of the Rhode Island Condominium Act, specifically G.L. 1956 § 34-36.1-2.17(d). Count Two alleged breach of the GIS SAR. Count Three alleged violation of restrictive covenants, and Count Four alleged common law trespass.

On February 25, 2014, a final judgment ultimately entered in Superior Court. The judgment reflected the fact that the trial justice had found in plaintiffs’ favor on Counts One, Two, and Four; the trial justice deemed Count Three to be moot. The final judgment went on to enjoin the Trust from "further expanding [the unit at issue] beyond any expansion that ha[d] already been completed" as of August 22, 2012. It further denied plaintiffs’ request for attorneys’ fees and costs and their request for an injunction mandating the removal of the expansion of the unit at issue. The plaintiffs appealed to this Court, and the Trust filed a cross-appeal.

In that case— America Condo I —we upheld the judgment of the Superior Court in part and vacated that judgment in part. America Condo I , 140 A.3d at 109. We held that it had already been established by our opinion in Sisto I , 68 A.3d at 614, that the Trust's expansion of the unit at issue violated the Condominium Act. Id. at 113. We further held that the trial justice did not err in finding that the Trust breached the GIS SAR and also that she did not err in "declining to contend with the restrictive covenants claim since it was not necessary for her to do so." Id. at 114, 115. We further upheld the trial justice's determination that the expansion of the unit at issue constituted a common law trespass. Id. at 117.

Where this Court's view differed from that of the trial justice was with respect to her denial of plaintiffs’ request for an award of attorneys’ fees and costs. Id. at 116-17. We focused our analysis entirely on the question of whether or not there was a basis in the GIS SAR for the award of attorneys’ fees and costs, holding that § 11.3 did in fact provide "a basis for an award of attorneys’ fees and costs in the instant case where plaintiffs were enforcing rights provided for in the GIS SAR." Id. at 116. We went on to hold that the trial justice was not free to decline to award any fees and costs when § 11.3 of the GIS SAR used the word "shall * * *." Id. We remanded the case for "the trial justice's valuation of the attorneys’ fees and costs to be awarded." Id. at 117.

BThe Litigation on Remand Concerning Attorneys’ Fees and Costs

On remand, plaintiffs filed a motion for attorneys’ fees and costs seeking $233,688 in attorneys’ fees and $3,866.94 in costs for the underlying litigation. The plaintiffs further sought post-judgment interest from the date of the original judgment—February 15, 2014. Lastly, plaintiffs’ motion requested "reasonable costs and attorneys’ fees incurred while enforcing their right to the fees in the underlying litigation" (fees on fees) and stated that plaintiffs would be submitting additional affidavits in support of those fees and costs. Attached to the motion for attorneys’ fees and costs were the following: (1) an affidavit of Timothy J. Groves, who had been one of plaintiffs’ attorneys, accompanied by invoices for his services; (2) an affidavit of Robert C. Shindell, who also provided legal representation to plaintiffs, accompanied by invoices for his services; (3) an affidavit of Diane S. Vanden Dorpel, a condominium owner in the Goat Island South Condominium, with accompanying exhibits; (4) an affidavit of Sandra M. Conca, a condominium owner in the Goat Island South Condominium; and (5) an affidavit of Brian G. Bardorf, an attorney retained by plaintiffs as their witness with respect to the reasonableness of attorneys’ fees.²

A hearing of five days duration commenced on August 22, 2017. The only witness to testify was plaintiffs’ witness, Attorney Brian Bardorf.

1. The Testimony of Brian Bardorf

Attorney Bardorf testified for plaintiffs with respect to the reasonableness of plaintiffs’ proposed attorneys’ fees. He testified that he had been practicing condominium law since 1973 or 1974. He further testified that he reviewed all the legal invoices provided to him by plaintiffs’ attorneys, which dealt with the period from March 10, 2010 to December 12, 2016. He stated that there was "nothing unusual or unreasonable" about the rates charged by plaintiffs’ attorneys and that those rates were in fact "quite modest." It was his testimony that he subtracted $24,416.55 from what he deemed to be the total attorneys’ fees award because, in his opinion, those were unrelated charges. He consequently concluded that a fair and reasonable fee would be $233,688.44.

On cross-examination, Attorney Bardorf acknowledged that the attachments to the affidavits filed with the Court by plaintiffs’ attorneys reflected a total amount of only $224,960—not $233,688.44. He admitted that he did not read the pertinent affidavits until after he rendered his opinion in March of 2017, and he further admitted that he had not read any of the pleadings in the case, including the complaint. Attorney Bardorf stated that he had relied on the findings of fact contained in the Superior Court decision in the instant case and in America Condo I . He further acknowledged that he was not familiar with the term "mandate rule."

Attorney Bardorf also acknowledged on cross-examination that he was not familiar with the term "lodestar" in connection with the calculation of attorneys’ fees at the time that he set forth, in his affidavit, his opinion as to reasonableness. He further testified that, with respect to that term, he did "look it up" after it was referenced at his deposition because he had "a different understanding of lodestar." That being said, it was also his testimony that, even though he was not familiar with the term as such, it was "exactly what [he] did in going through the * * * billings." Attorney Bardorf added that he had not deducted any fees relating to the common law trespass count, the restrictive covenant count, or the count alleging violation of the Condominium Act because, in his view, the four counts in the complaint were all "intermingled" and dealt with "the same set of circumstances * * *." He also admitted that he did not deduct any block billing.

After the hearing, the parties submitted post-hearing memoranda. In the plaintiffs’ post-hearing memorandum, they noted that there were discrepancies between the affidavits/invoices of Attorney Groves and...