Opinion
C. A. NC-2017-0493
03-27-2020
CHARLES A. ANTON AND TAMI D. ANTON, as TRUSTEES OF THE VICTORIA AVENUE REALTY TRUST Plaintiffs, v. PHILIPPE L. HOUZE AND MARIE HOUZE, Defendants.
For Plaintiff: Rachelle R. Green, Esq., R. Daniel Prentiss, Esq. For Defendant: Randall L. Souza, Esq.
For Plaintiff: Rachelle R. Green, Esq., R. Daniel Prentiss, Esq.
For Defendant: Randall L. Souza, Esq.
DECISION
VAN COUYGHEN, J.
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.
I
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. 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.
Anton v. Houze, No. NC-2017-0493, 2019 WL 5087262 (R.I. Super. Oct. 03, 2019).
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.Through 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.
It is not clear from the record whether or not costs were paid by CGD and reimbursed by Plaintiffs. For purposes of this Decision, the Court will proceed as if costs were reimbursed by Plaintiffs.
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.
II
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. Section 34-36.1-4.17.
Plaintiffs have not sought punitive damages.
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).
III
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 determining the reasonableness of a fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." (internal quotations omitted)). "A trial justice determines the reasonableness of the fee by considering the factors enumerated in Rule 1.5 [of the Rhode Island Rules of Professional Conduct]." Keystone Elevator Co., Inc. v. Johnson & Wales University, 850 A.2d 912, 921 (R.I. 2004) (citing Colonial Plumbing & Heating Supply Co, 464 A.2d at 743). These factors include:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent. Rule 1.5 of the Rhode Island Rules of Professional Conduct.
These factors should be considered on a case-by-case basis as no one factor is controlling. See Palumbo v. U.S. Rubber Co., 102 R.I. 220, 224, 229 A.2d 620, 622-23 (1967).
The Court will first address the claims for attorneys' fees and then Plaintiffs' claim for costs and expenses. As previously stated, both parties have submitted affidavits in support of their position on the reasonableness of the requested fees to the Court. In addition to these affidavits, the Court has also reviewed each bill submitted. CGD has requested a rate of $175 per hour for associate Emily Migliaccio, $180 per hour for associate Dorothea Lindquist, and $350 per hour for partner Ms. Green. As stated above, during the course of this litigation, Plaintiffs and CGD negotiated a fee cap of $92, 821.33. Plaintiffs now seek that amount and CGD seeks an additional $72, 287.37 for hours expended over the fee cap. As a result, Plaintiffs and the attorneys from CGD request a total fee of $165, 108.70. Plaintiffs also request reimbursement for Mr. Prentiss' fees. Mr. Prentiss charged a rate of $385 per hour for a total fee request of $87, 761.45. In total, Plaintiffs and counsel seek an award of $252, 870.15 for hourly fees associated with the litigation.
Defendants do not contest several aspects of the attorneys' fee calculation. Defendants' expert has stated that Mr. Prentiss' request for fees in the amount of $87, 761.45 is fair and reasonable. Defendants' expert also opined that CGD's fees for work done and paid by Plaintiffs up to the fee cap, (excluding pre-litigation work reflected in invoice number 137), to be fair and reasonable. (Aff. of Barry Kusinitz ¶ 14.) The Court agrees with Defendants' assessment regarding the agreed upon fees.
Defendants do object to attorneys' fees sought by CGD above the $92, 821.33 fee cap, and also contest CGD's invoice number 137 which included $4315.50 of work performed prior to the lawsuit being filed. Defendants seek a reduction in fees based on three arguments. First, Defendants argue that the block bills reflected in invoice number 137 that were paid by Plaintiffs for pre-litigation services should be denied or reduced. Second, Defendants contend that attorneys' fees above the cap that were not billed and are not owed by Plaintiffs should not be recoverable. Third, in the alternative if the Court awards fees above the fee cap, then Defendants argue that Ms. Green's hourly rate is excessive.
The United States Supreme Court has stated that "[a] request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). As a result, the District Court for the District of Rhode Island has held that courts are "not required to engage in a line-by-line review of time records or to 'drown in a rising tide of fee-generated minutiae.'" Sherwood Brands of Rhode Island, Inc. v. Smith Enterprises, Inc., No. Civ. A. 00-287T, 2002 WL 32157515, at *2 (D.R.I. Sept. 5, 2002) (quoting United States v. Metropolitan District Commission, 847 F.2d 12, 15 (1st Cir. 1988)).
While this Court has examined the bills in detail, it declines to engage in a line-by-line analysis of the submitted bills here. The Court will address the arguments raised by the parties below.
i
Block Billing and Pre-Suit Billing
Defendants first assert that the amount of attorneys' fees requested in CGD's invoice number 137 should be denied or discounted because it includes block billing entries for work done before the Complaint was filed. Plaintiffs argue that their entries on this invoice, while block billed, contain sufficient detail so as to afford confidence that all of the time billed was productively spent and thus should not be reduced.
In assessing the reasonableness of the fees being requested by Plaintiffs, the Court has the authority to discount all block billings that lump different claims and tasks together. See World Triathalon Corp. v. Dunbar, 539 F.Supp.2d 1270, 1284-85 (D. Haw. 2008) ("The term block billing refers to the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks. Block billing entries generally fail to specify a breakdown of the time spent on each task.") (internal citations and quotations omitted); see also Adorno v. Port Authority of New York & New Jersey, 685 F.Supp.2d 507, 515 (S.D.N.Y. 2010), on reconsideration in part, No. 06 CIV. 593 (DC), 2010 WL 727480 (S.D.N.Y. Mar. 2, 2010) ("While 'block-billing' is disfavored and may lack the specificity required for an award of attorneys' fees, it is not prohibited as long as the Court can determine the reasonableness of the work performed.") (internal citations and quotations omitted).
After a review of invoice number 137, it is clear that there are eight separate entries, each averaging less than two hours in length, with sufficient detail to discern the tasks performed. See Adorno, 685 F.Supp.2d at 515. Additionally, after review and clarification by Ms. Green at oral argument, the Court is confident that the work performed on invoice number 137 was in anticipation of litigation with the hopes of avoiding a lawsuit and thus should be recoverable. As such, the Court finds that the amount set forth in invoice number 137 is fair and reasonable.
ii
Capped and Discounted Bills
Defendants next argue that because CGD has requested attorneys' fees not paid or due by Plaintiffs as a result of a fee cap arrangement, then the additional fees are not recoverable. In the alternative, Defendants' expert opines that Ms. Green's fees are excessive. Ms. Green contends that these fees are recoverable as they are part of the lodestar amount of reasonable and necessary hours worked on the litigation, even if not billed to Plaintiffs.
This Court has determined that the amount of CGD's contested fees above the cap is $72, 287.37. It has reached this figure by taking the total fees requested by Plaintiffs and CGD of $165, 108.70 and subtracting $92, 821.33 paid by Plaintiffs up to the fee cap. The sum of $87, 796.87 of contested fees that Defendants cite in their affidavit is incorrect. Defendants incorrectly state that Ms. Green sought to recover the gross amount of the submitted invoices before discounts were applied and duplicative time was removed. (Aff. of Barry Kusinitz ¶¶ 10- 11, 21.) However, Ms. Green does not seek to recover fees for time that she discounted. In fact, CGD applied discounts ranging between 10-25% to all of the invoices provided to the Court, and Ms. Green did not bill for any duplicative work performed by Mr. Prentiss, including her time at trial. (Aff. of Rachelle Green at ¶¶ 7, 21.) Thus, the correct amount for CGD's contested fees is $72, 287.37.
As stated above, in cases in which an award of attorneys' fees is authorized by statute or by judicial doctrine, the primary method used by courts in assessing attorneys' fee awards is referred to as the lodestar approach. 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); Particular Items of Cost-Attorney's Fees: The Lodestar Approach, 10 Federal Practice & Procedure Civil § 2675.2 (4th ed.). The starting point or lodestar for setting fees is the time/rate calculation. The court will look to the amount of time spent and multiply that by the fee generally assessed for comparable work in the area. Perdue, 559 U.S. at 551 ; see also Schiff, 684 A.2d at 1131. There is a strong presumption that the lodestar figure represents a reasonable fee, as it is wholly consistent with the rationale behind the usual fee-shifting statute, such as the Rhode Island Condominium Act presently before this Court. See, e.g., Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986), supplemented, 483 U.S. 711 (1987). "These [fee-shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client." Id. "Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific . . . laws" in order to ensure that the enumerated protections set forth in the statutes are complied with. Id.
The lodestar analysis has typically been used in the federal court context involving fee shifting statutes to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific laws including violations under the Civil Rights Act and the Clean Air Act. See Hensley, 461 U.S. at 424 (holding that "[t]he purpose of the Civil Rights Attorney's Fees Awards Act is to ensure effective access to the judicial process for persons with civil rights grievances"); see also Delaware Valley Citizens' Council for Clean Air, 478 U.S. at 546 (holding the statutory purpose of the Clean Air Act is to enable plaintiffs to secure legal assistance to pursue their claims). These statutes and the lodestar analysis that follows allow prevailing attorneys to recover a fee, even if no fee was charged. See id.
The instant situation as it relates to CGD deals with the recovery of attorneys' fees above a capped amount that were never billed or expected to be paid by Plaintiffs. This case involves the Rhode Island Condominium Act, which our Supreme Court has recognized "'as a whole contains a strong consumer protection flavor"' because of "'a perceived need for additional consumer protection."' America Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117, 128 (R.I. 2004), decision clarified on reargument, 870 A.2d 434 (R.I. 2005) (quoting One Pacific Towers Homeowner's Association v. HAL Real Estate Investments, Inc., 61 P.3d 1094, 1100 (Wash. 2002)). Indeed, the Supreme Court has described the Act as "a careful attempt by the Legislature to strike a balance between a declarant's need for flexibility in creating a condominium and the interests of each individual unit owner in the enjoyment of his or her particular parcel of real estate." America Condominium Association, Inc. v. IDC, Inc., 870 A.2d 434, 442 (R.I. 2005). As a consumer protection statute, § 34-36.1-4.17 of the Rhode Island Condominium Act enables plaintiffs to secure legal assistance to pursue their claims by awarding attorneys' fees to the prevailing party. Due to the consumer protection flavor of the Rhode Island Condominium Act, the same analysis regarding using the lodestar as a presumptive reasonable starting point should be applied here. See Maceira v. Pagan, 698 F.2d 38, 39 (1st Cir. 1983) (applying the lodestar analysis to a labor and employment dispute); see also Sisto v. American Condominium Association, Inc., 140 A.3d 124, 129 n.7 (R.I. 2016) ("[t]he 'lodestar' is the starting point for determining the reasonableness of attorney's fees" applying the analysis to anti-SLAPP claim); City of Burlington v. Dague, 505 U.S. 557, 568 (1992) (holding that "Congress' purpose in adopting fee-shifting provisions was to strengthen the enforcement of selected . . . laws by ensuring that private persons seeking to enforce those laws could retain competent counsel"). This Court therefore interprets the case law as not excluding attorneys' fees above the fee cap. There are various situations in which a fee cap could be negotiated involving a fee-shifting statute because a party may be unable to pay the entirety of the attorneys' fee. To hold that a fee cap arrangement would void the attorney's right to collect full compensation would thwart the underlying purpose of a fee-shifting statute. See City of Burlington, 505 U.S. at 569 (concluding that fee-shifting provisions have been designed to address difficulties that otherwise would prevent private persons from obtaining counsel, including potential plaintiffs' lack of resources to hire an attorney, and the no or small damage awards that would render a standard contingent-fee arrangement unjustified). Thus, these fees are considered in the Court's lodestar analysis. To hold otherwise would obviate the strong consumer protection purpose of the statute. Sisto, 140 A.3d at 130.
Based on a thorough and comprehensive review, the lodestar amount for CGD bills is $165, 108.70. The amount in dispute is $72, 287.37, which is the amount above the fee cap arrangement. Therefore, this Court will consider the eight factors enumerated in Rule 1.5 of the Rhode Island Rules of Professional Conduct as it relates to the disputed fees.
The first of the eight factors in the Rules of Professional Conduct is the labor and time required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. Here, the case was aggressively litigated by both parties, resulting in a large amount of labor and time required. Defendants' unilateral actions throughout this litigation also required substantial expenditure of Plaintiffs' counsel's time. See Sisto, 140 A.3d at 130. The case was also somewhat complex given the underlying novel issues of condominium law. See id.
There is no information in the record about the second factor, the preclusion of other employment. Regarding the third factor, however, the Court finds the hourly rates charged by Ms. Green above the fee cap were unreasonable. There was no need to charge her full hourly rate given that Mr. Prentiss became heavily involved in the case at that time. Although the Court notes both the contentiousness of Defendants in this action and the many judgment calls that had to be made, one experienced partner could have handled the case with the help of an associate. This Court does not find that the case required an "all hands on deck" approach with two partners working on the case simultaneously. Once Mr. Prentiss was established on the case, Ms. Green should have used her associates to assist Mr. Prentiss in the matter or reduced her hourly rate. See Hensley, 461 U.S. at 434. There was no need to have two experienced partners billing on this case. See id. However, the Court notes that the amount of $2541.50 billed by Ms. Migliaccio at a rate of $175 per hour, and the amount of $7798.50 billed by Ms. Lindquist at $180 per hour above the fee cap to be reasonable and fair. Defendants' expert also notes the reasonableness of these rates. (Aff. of Barry Kusinitz ¶ 24.)
Factor four relates to the amount involved and the results obtained. The litigation centered around Plaintiffs' ability to participate in the governance of their condominium. If Plaintiffs were not successful, they would have lost their ability to have any say in the management of their property. Based upon Plaintiffs' expert testimony at trial, the value of their property would be considerably devalued if Defendants were able to unilaterally modify their unit and common areas. Plaintiffs would have been totally subservient to the adjacent condominium owners if they were unsuccessful. The Court finds that the amount in controversy was substantial. Also, as evidenced by the record, Plaintiffs were ultimately successful.
Factor five relates to time limitations. As stated earlier, Defendants' unilateral actions regarding the condominium drove up the time expended substantially. Factor six, which involves the lawyers' professional relationship with the client, is of little or no bearing here because there are no facts on the record regarding this issue. In regard to the seventh factor-experience, reputation, and ability of the lawyers-the Court finds that the lawyers are experienced and were thorough, well prepared and professional throughout this case. In addition, Defendants' expert does not dispute the Court's assessment. The eighth factor, which concerns the fee arrangement entered into, has already been addressed by the Court. The Court has held the fee cap arrangement does not limit the lodestar analysis. Also, the case was not appropriate for a contingency fee because it did not seek compensatory damages other than attorneys' fees. The lodestar analysis is therefore appropriate in this case. See Hensley, 461 U.S. at 434.
Therefore, pursuant to the above discussion regarding factor three, this Court has taken the disputed invoices from CGD-numbers 942, 1011, and 1132-above the fee cap-totaling $72, 287.37 of hourly work-and first subtracted $10, 339.87 of work performed by associates Ms. Lindquist and Ms. Migliaccio. The Court then took this new total of $61, 947.50 and divided it in half. This reflects Ms. Green's hourly rate being cut from her usual rate of $350 per hour to her associate rate of $175 per hour. The associates' work was then added back into the total rendering an amount of $41, 313.62. This reduced the disputed fee amount from $72, 287.37 to $41, 313.62. The Court finds this reduction reasonable in light of Mr. Prentiss, an experienced litigator, being heavily involved with the case at the time. This Court does not reduce Mr. Prentiss' time spent or hourly rate, because the Court finds that it was fair and reasonable and Defendants acquiesced to its reasonableness. Therefore, in light of the above, this Court awards Plaintiffs $87, 761.45 in fees relating to Mr. Prentiss. The Court also awards Plaintiffs $92, 821.33 paid to CGD up to the fee cap and $41, 313.62 to CGD for hours expended in excess of the fee cap. Thus, the total fees awarded to Plaintiffs and counsel is $221, 896.40.
iii
Costs and Expert Witness Fees
Also at issue is whether expert witness fees are recoverable by Plaintiffs. The total amount requested for costs and expenses is $20, 194.75. Mr. Prentiss requests $9630.00 in expert witness fees relating to expert Edmund Allcock, $1000.00 relating to Thomas O. Sweeney, and $1340.00 relating to Frank Lombardi for a total of $11, 970.00. Mr. Prentiss also requests an additional $3078.50 for costs relating to paying for bond and trial transcripts. Ms. Green requests $5146.25 in costs relating to service of process, mailing, obtaining permits and other documentation, copying expenses, and deposition costs.
Defendants challenge the $11, 970.00 in expert fees and claim that they are not costs or recoverable litigation expenses. Our Supreme Court has declared that
the payment of expert-witness fees is not normally recoverable in an award of costs made pursuant to G.L. 1956 § 9-22-5. Costs are normally considered the expenses of suing another party, including filing fees and fees to serve process. Fees to pay expert witnesses would not be included in this definition of costs. South County Post & Beam, Inc. v. McMahon, 116 A.3d 204, 215 (R.I. 2015) (quoting Chiaradio v. Falck, 794 A.2d 494, 496 (R.I. 2002)).
Although the Rhode Island Condominium Act, pursuant to § 34-36.1-4.17, allows for recovery of "reasonable attorney's fees" and the Condominium Documents in Section 10.1 of the Declaration also provides for the recovery of "reasonable costs and attorneys' fees," expert witness fees are not recoverable since they are not included in the definition of costs. See South County Post & Beam, Inc., 116 A.3d at 215.
Furthermore, Rule 54 of the Superior Court Rules of Civil Procedure, as well as G.L. 1956 § 9-22-21, gives a trial justice discretion regarding the allowance of costs, including costs for depositions. Bielecki v. Boissel, 715 A.2d 571, 575 (R.I. 1998). "The trial justice has discretion to determine whether pretrial depositions or other costs were reasonably necessary and, therefore, whether costs should be allowed for those particular items." Id. Section 9-22-21 provides that
[t]he taxation of costs in the taking of depositions shall be subject to the discretion of the court. No costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at the trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable charge of the officer before whom the deposition was taken, the fees and mileage allowances of witnesses, the stenographer's reasonable fee for attendance, and the cost of the transcript of the testimony or such part thereof as the court may fix.
Super. R. Civ. P. 54(e) provides that, "If objected to, the taxation of costs in the taking of depositions shall be subject to the discretion of the court. In case of such objection, no costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at the trial."
After a review of the requested costs, the Court deems all costs associated with bond, filing fees, service of process, mailing, obtaining permits and other documentation, and copying expenses to be reasonable and fair. Additionally, the Court finds the costs associated with the depositions claimed by Plaintiffs to be reasonable and necessary for the preparation of this case. However, the Court denies Plaintiffs' request for the fees of the expert witnesses. Accordingly, the Court deems all other costs requested to be fair and reasonable and notes that Defendants do not contest the reasonableness of those costs. Therefore, the Court awards $8224.75 in costs, with $5146.25 attributable to CGD and $3078.50 attributable to Mr. Prentiss.
iv
Contempt
a
Attorneys' Fees
This Court found Defendants in contempt on October 3, 2019 for violating a November 13, 2018 Court Order. As part of its October 3, 2019 Bench Decision, the Court awarded Plaintiffs their attorneys' fees. The Court awarded attorneys' fees for services rendered from December 17, 2018 through the completion of the contempt hearing which was held on February 12, 2019. See Bench Decision at 7. The Bench Decision provides an additional basis for the award of attorneys' fees for a portion of this litigation.
As stated above, the Court may impose an award of attorneys' fees as a sanction for a party found to be in contempt of a court's order. Africano, 837 A.2d at 729. '"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, 506 A.2d at 544).
The attorneys' fees at issue span from December 17, 2018 through February 21, 2019. Mr. Prentiss presented ten bills (invoice numbers 45455, 45444, 45464, 45537, 45540, 45544, 45547, 45548, 45550, 45551) for work performed that related to the contempt motion and hearing. The total amount for these invoices totaled $8008.00. Ms. Green and CGD did not submit any bills to this Court for the time frame between December 17, 2018 through February 2019. It is clear to this Court that Defendants' actions were willful. As stated previously, this Court finds the attorneys' fees billed for the period in question to be fair and reasonable. Also, as stated, Defendants do not contest the reasonableness of Mr. Prentiss' fees. Therefore, the Court awards attorneys' fees for contempt in the amount of $8008.00 to Plaintiffs as an additional basis supporting the award of a portion of attorneys' fees in this case.
See Court's Bench Decision at 5-6.
This amount is included in the award of attorneys' fees awarded pursuant to the Rhode Island Condominium Act.
b
Contempt Remedy
Regarding the contempt finding by this Court on October 3, 2019, Defendants contend that the estimate propounded by Plaintiffs of $6650.00 to remedy the contempt is excessive. Defendants contend that contempt can be purged with the much lower sum of $1625.00 and have provided an estimate. Plaintiffs argue that their estimate is reasonable to restore the landscape back to its original state.
The estimate submitted by Defendants is inadequate to remedy the contempt. See Africano, 837 A.2d at 729. Defendants' estimate includes a proposal for a crabapple tree with a trunk size that is 1.5-2 inches in diameter and smaller holly bushes than the ones that were removed. Defendants' estimate also omits the cost to prepare and mulch the bed. Overall, it appears that Defendants' estimate is a basic planting plan that would not place Plaintiffs in the position they would have been in before the contempt; rather, Defendants' estimate appears to be an effort to spend as little as possible. From the photograph introduced at the contempt hearing (Pl.'s Ex. 8 full), it is clear that the tree and bushes that were removed were adult sized, and the tree trunk for the crabapple tree was much larger than two inches in diameter.
Defendants have also not identified anything in Plaintiffs' proposal that is inappropriate or inconsistent with the Court's order. Plaintiffs' estimate is a planting plan that reasonably replicates what was unilaterally removed by Defendants, which includes the cost to replace the mature tree and bushes, as well as site preparation, mulch, and installation. This Court finds that the proposal submitted by Plaintiffs is reasonable and not at all excessive. See Moran, 506 A.2d at 544. Therefore, this Court finds that the proposal of $6650.00 submitted by Plaintiffs is appropriate and a fair and reasonable estimate to restore the landscaping to its original state.
IV
Conclusion
In view of the foregoing, this Court awards Plaintiffs $188, 807.53 in attorneys' fees and costs. This amount is broken down as follows: $92, 821.33 paid to CGD up to the fee cap; $5146.25 in costs attributable to CGD; $87, 761.45 for attorneys' fees paid to Mr. Prentiss; and $3078.50 in costs attributable to Mr. Prentiss. This Court also awards CGD $41, 313.62 in attorneys' fees for services in excess of the fee cap. Plaintiffs are also awarded $6650.00 associated with the landscaping in order to remedy Defendants' contempt. All fees related to compensation of the expert witnesses are denied.
Counsel shall prepare an appropriate order for entry.