Anton v. Houze, 032720 RISUP, NC-2017-0493

Docket Nº:C. A. NC-2017-0493
Opinion Judge:VAN COUYGHEN, J.
Attorney:For Plaintiff: Rachelle R. Green, Esq., R. Daniel Prentiss, Esq. For Defendant: Randall L. Souza, Esq.
Case Date:March 27, 2020
Court:Superior Court of Rhode Island




C. A. No. NC-2017-0493

Superior Court of Rhode Island, Newport

March 27, 2020

For Plaintiff: Rachelle R. Green, Esq., R. Daniel Prentiss, Esq.

For Defendant: Randall L. Souza, Esq.



The matter before the Court is a motion by Charles A. and Tami D. Anton, as Trustees of the Victoria Realty Trust, (Plaintiffs) seeking costs and attorneys' fees from Philippe L. and Marie Houze (Defendants). In October 2019 Plaintiffs were awarded judgment, including injunctive relief and attorneys' fees. Defendants were also held in contempt of court for violating a Court Order (Order) prohibiting Defendants from unilaterally undertaking any modifications to the external components of the condominium including landscaping. Plaintiffs and counsel now seek $279, 714.90 in costs and attorneys' fees that they have incurred during this litigation, as well as expenses to restore vegetation unilaterally removed by Defendants in violation of this Court's Order.


Facts and Travel

This case involved a dispute between the Unit Owners of the D & J Condominium (the Condominium) concerning the Condominium's governance scheme regarding the approval required before altering the Condominium's Units and Common Elements. The Condominium, located at 9 Victoria Avenue, Newport, Rhode Island, is comprised of two units and is governed by the Rhode Island Condominium Act, G.L. 1956 §§ 34-36.1-1 et seq., as well as the Condominium's Declaration, By-Laws, and Rules and Regulations (collectively the Condominium Documents). Plaintiffs brought a Complaint against Defendants due to disputes regarding the management and renovation of the Condominium. Plaintiffs contended that Defendants violated provisions of the Condominium Documents by proceeding with various renovations without first obtaining the necessary approval for making alterations to their Unit or to the Condominium's Common Elements. Plaintiffs sought declarations as to the valid interpretation of the various provisions in the Condominium Documents as well as an award of attorneys' fees and costs.

At the conclusion of the non-jury trial, but prior to this Court's decision on the merits, the Court granted an extension of injunctive relief preventing either party from taking any unilateral action associated with further renovation of the Condominium's Common Elements. Subsequent to the Court's order and prior to its decision on the merits, Defendants removed a mature, ornamental crabapple tree along with mature holly bushes from a portion of the property in violation of that Order. As a result, Plaintiffs moved to hold Defendants in contempt. A hearing on Plaintiffs' contempt motion was held on February 12, 2019. On October 3, 2019 this Court entered a written decision on the merits in Plaintiffs' favor.1 The Court also rendered a bench decision holding Defendants in contempt. The Court awarded Plaintiffs reasonable attorneys' fees and costs as a result of the trial. The Court also awarded attorneys' fees and costs as a result of the contempt hearing. The parties were instructed to provide the necessary documentation for their application for attorneys' fees in accordance with Colonial Plumbing & Heating Supply Co. v. Contemporary Construction Co. Inc., 464 A.2d 741, 743 (R.I. 1983) and its progeny, as well as landscape estimates, in order for Defendants to remedy their contempt.

Plaintiffs and their counsel now seek a total award of $279, 714.90 consisting of attorneys' fees, costs, litigation expenses, and landscaping repair. More specifically, Plaintiffs now seek reimbursement of $92, 821.33 that they paid Attorney Rachelle Green (Ms. Green) of Cervenka Green and Ducharme, LLC (CGD) plus $5148.25 in costs which were expended by CGD.2Through the course of this litigation, CGD and Plaintiffs negotiated a fee cap agreement which capped fees at $92, 821.33. CGD is now seeking an additional $72, 287.37 for hours expended in excess of the fee cap agreement. In addition, Plaintiffs seek reimbursement for attorneys' fees, costs, and litigation expenses paid to Attorney R. Daniel Prentiss (Mr. Prentiss). Mr. Prentiss' fees total $87, 761.45, and costs and expenses total $15, 048.50. Counsel have provided appropriate affidavits to support reimbursement of their fees and costs. Finally, Plaintiffs seek $6650.00 to restore the landscaping features unilaterally removed by Defendants in violation of this Court's Order.

Defendants object to the amount of attorneys' fees sought by CGD and argue that attorneys' fees above the agreed upon fee cap imposed by Ms. Green which were not billed or owed by Plaintiffs should not be recoverable. They also argue that pre-litigation bills that were paid by Plaintiffs should be denied or in the alternative reduced because they were performed prior to the lawsuit being filed and were "block billed." They further contend that expenses associated with expert witnesses are not recoverable and also claim that the landscape estimate to remedy the contempt by Defendants is excessive. Defendants have submitted their own expert affidavits to contest the reasonableness of a portion of Plaintiffs' attorneys' fees as well as an estimate to repair and replace the removed landscaping.


Standard of Review

Rhode Island '"adheres to the 'American rule' [which provides] that litigants generally are responsible for their own attorneys' fees and costs."' Pearson v. Pearson, 11 A.3d 103, 108-09 (R.I. 2011) (alteration in original) (quoting Downey v. Carcieri, 996 A.2d 1144, 1153 (R.I. 2010)) (internal quotation marks omitted). However, "[t]he award of attorneys' fees, when statutorily or contractually authorized, is a matter confided to the sound discretion of the presiding judicial officer." Mullowney v. Masopust, 943 A.2d 1029, 1034-35 (R.I. 2008) (citing Women's Development Corp. v. City of Central Falls, 764 A.2d 151, 162 (R.I. 2001)). The Rhode Island Condominium Act states: If a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. Punitive damages may be awarded in the case of a willful failure to comply with this chapter. The court, in an appropriate case, may award reasonable attorney's fees.3 Section 34-36.1-4.17.

In Mullowney, the Supreme Court recognized this Act "vests significantly broader discretion in the presiding judicial officer than is the case with some other statutes that authorize the awarding of attorneys' fees." 943 A.2d at 1034 n.4. In accessing litigation pursuant to the Act, the hearing justice may grant attorneys' fees and costs upon a finding that a defendant has "acted at least unreasonably and caused plaintiffs to suffer the expense of substantial and complex litigation in order to vindicate their rights." Id. at 1035 (Internal quotations omitted).

In addition, Section 10.1 of the D & J Condominium Declaration (Declaration) provides for the recovery of attorneys' fees from the unit owner or other persons in "[v]iolation of any of the terms of this Declaration, including the By-Laws and the Rules and Regulations[.]" Section 10.1 of the Declaration states in part, "[e]ach Owner or other person violating the terms hereof shall be liable for all court costs and reasonable attorneys' fees incurred by . . . any Owner relating to such violation."

Moreover, "'the inherent power of courts to punish for contempt of their orders has long been recognized by our jurisprudence.'" Africano v. Castelli, 837 A.2d 721, 729 (R.I. 2003) (quoting Gardiner v. Gardiner, 821 A.2d 229, 232 (R.I. 2003) (per curiam)). "The trial justice, in his or her discretion, may impose an award of attorney's fees as a sanction for a party found to be in contempt of a court's order." Id. '"The only restraint on the trial justice's discretion is that the award of an attorney's fee should be reasonably related to the extent and willfulness of the contempt."' Id. (quoting Moran v. Rhode Island Brotherhood of Correctional Officers, 506 A.2d 542, 544 (R.I. 1986) (citing Nelson v. Progressive Realty Corp., 81 R.I. 445, 451, 104 A.2d 241, 244 (1954))). "[C]ivil contempt is a remedial device designed to coerce compliance with judicial decrees, [the Supreme Court] will reduce an award of a fee that is grossly excessive." Moran, 506 A.2d at 544 (internal quotations omitted).


Fee Calculation

After deciding that a party is entitled to an award of attorneys' fees, "[t]he next step in determining the amount of the award is to calculate the 'lodestar,' which is that number of hours reasonably expended by the successful party's counsel in the litigation, multiplied by a reasonable hourly rate." Litton Industries, Inc. v. IMO Industries, Inc., 982 A.2d 420, 428 (N.J. 2009); see also In re Matter of Schiff, 684 A.2d 1126, 1131 (R.I. 1996) ("The starting point or 'lodestar' for...

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