                                                               Supreme Court
                                                               No. 2015-181-Appeal.
                                                               (NC 08-119)


Bennie Sisto, as the Trustee of Goat Island   :
               Realty Trust

                    v.                        :

America Condominium Association, Inc.,        :
               et al.




              NOTICE: This opinion is subject to formal revision before
              publication in the Rhode Island Reporter. Readers are requested to
              notify the Opinion Analyst, Supreme Court of Rhode Island,
              250 Benefit Street, Providence, Rhode Island 02903, at Telephone
              222-3258 of any typographical or other formal errors in order that
              corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2015-181-Appeal.
                                                                  (NC 08-119)
                                                                  (Dissent begins on page 9)

Bennie Sisto, as the Trustee of Goat Island    :
               Realty Trust

                      v.                       :

 America Condominium Association, Inc.,        :
                et al.


                      Present: Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Indeglia, for the Court. The saga continues between the plaintiff, Bennie Sisto

(Sisto or plaintiff), and the defendants, America Condominium Association, Inc., and the

members of its executive board, (collectively, defendants). This time, the plaintiff appeals the

Superior Court’s award of $8,924.60 to the defendants for their attorney’s fees incurred in

defending the plaintiff’s claim on appeal pursuant to Rhode Island’s strategic lawsuit against

public participation (anti-SLAPP) statute, G.L. 1956 chapter 33 of title 9. This matter came

before the Supreme Court on February 25, 2016, pursuant to an order directing the parties to

appear and show cause why the issues raised should not be summarily decided. After hearing

the arguments of counsel and reviewing the memoranda submitted on behalf of the parties, we

are satisfied that cause has not been shown. Accordingly, we shall decide the matters at this time

without further briefing or argument. For the reasons set forth herein, we affirm the judgment of

the Superior Court.




                                                   -1-
                                                   I

                                         Facts and Travel

       Setting the various nuances and nitty-gritty details of this seemingly never-ending case

aside, the facts essential to the instant appeal are as follows. 1 The plaintiff owns a condominium

unit within the Goat Island South (GIS) condominium community.                In 2006, he filed an

application with the Coastal Resources Management Council (CRMC) seeking to expand his

unit. The defendants filed an objection to his proposal, asserting, inter alia, that plaintiff did not

own the property upon which he sought to expand his unit and that his proposal failed to comply

with certain CRMC requirements. As a result of this objection and other correspondence with

defendants, the CRMC questioned whether plaintiff owned the land he sought to expand upon

and denied his application.

       In March 2008, plaintiff took his grievances to the courthouse and filed a complaint in

Newport County Superior Court alleging slander of title and breach of contract and seeking a

declaratory judgment that he had the right to file an application with the CRMC to expand his

unit. Not to be outdone, defendants moved for partial summary judgment, arguing that our anti-

SLAPP statute protected them from any liability for questioning plaintiff’s ownership of the land

in their communications with the CRMC. The trial justice granted defendants’ partial summary

judgment motion; and, in accordance with § 9-33-2(d) of the anti-SLAPP statute, awarded

defendants $9,685.31 in attorney’s fees. The plaintiff appealed to this Court, and we affirmed

the Superior Court’s grant of the partial summary judgment motion in favor of defendants on the




1
 For a full recitation of the facts surrounding this ten-year odyssey, we refer the reader to our
opinion in Sisto v. America Condominium Association, Inc., 68 A.3d 603 (R.I. 2013).
                                                 -2-
anti-SLAPP claim. 2 Sisto v. America Condominium Association, Inc., 68 A.3d 603, 617 (R.I.

2013).    Following that opinion, defendants filed an amended motion for an assessment of

attorney’s fees in Superior Court seeking to recover $29,748.65 incurred in defending the anti-

SLAPP judgment on appeal. 3

         In that proceeding, the hearing justice first issued a decision in which he determined that

the Superior Court had subject matter jurisdiction to hear defendants’ motion, rejecting

plaintiff’s myriad contentions to the contrary. The hearing justice then issued a subsequent

decision awarding defendants $8,924.60 in attorney’s fees in connection with the appeal. Final

judgment was entered on April 30, 2015. The plaintiff filed a timely appeal. 4

                                                 II

                                         Issues on Appeal

         On appeal, plaintiff argues that the hearing justice erred when he determined that the

Superior Court had subject matter jurisdiction over defendants’ motion for assessment for

attorney’s fees. He also posits that the fees awarded to defendants were unreasonable. We

discuss the specifics of his quarrels below.




2
  We also concluded that the Rhode Island Condominium Act, G.L. 1956 chapter 36.1 of title 34,
required plaintiff to obtain unanimous consent from the other 153 unit owners in the Goat Island
Community to expand his townhouse on to the shared land. Sisto, 68 A.3d at 614.
3
  The defendants’ original motion sought attorney’s fees in the amount of $152,122.55. The
motion was amended to “eliminat[e] fees mistakenly included in the original motion” and sought
a total of $39,433.96, which included the outstanding $9,685.31 in attorney’s fees that were
previously awarded by the Superior Court.
4
  According to defendants, shortly after plaintiff filed the instant notice of appeal, defendants
received a check from plaintiff in the amount of $8,924.60 along with a memorandum which
stated that plaintiff was making payment “without prejudice and with full reservation of rights.”
From what we can discern from the record and the parties’ prebriefing statements, the previous
award of $9,685.31 remains unpaid.
                                                 -3-
                                                  III

                                              Discussion

        To begin, we sketch a brief overview of attorney’s fees as they relate to the anti-SLAPP

statute. Section 9-33-2(d) provides: “If the court grants the motion asserting the immunity

established by this section, * * * the court shall award the prevailing party costs and reasonable

attorney’s fees, including those incurred for the motion and any related discovery matters.”

(Emphasis added.) Thus, in Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 757 (R.I.

2004), we held that when a party prevails under the anti-SLAPP statute, “an award of costs and

reasonable attorneys’ fees [is] mandatory.” We have also stated that the statutorily mandated

fees include those in connection with an appeal “for the defense of [such] judgment.” Karousos

v. Pardee, 992 A.2d 263, 273 (R.I. 2010). This statutory authority results in a deviation from our

otherwise “staunch adherence to the ‘American rule’ that requires each litigant to pay its own

attorney’s fees * * *.” Moore v. Ballard, 914 A.2d 487, 489 (R.I. 2007) (citing Eleazer v. Ted

Reed Thermal, Inc., 576 A.2d 1217, 1221 (R.I. 1990)).

        The plaintiff does not dispute that defendants “prevailed” under the anti-SLAPP statute,

both in the Superior Court and on appeal. Thus, under our case law, an award of reasonable

attorney’s fees in defendants’ favor—including those incurred in connection with defending the

judgment on appeal—is mandatory. The plaintiff nevertheless attacks the award both as to its

propriety and reasonableness.

                          A. Propriety of the Award of Attorney’s Fees

        Whether the issue of attorney’s fees was properly before the Superior Court is a threshold

matter in this appeal, so we address this issue first.




                                                  -4-
                                      i. The Mandate Rule

       The plaintiff’s most tenable argument is that the Superior Court improperly deviated from

our mandate in Sisto, 68 A.3d at 617, by awarding defendants attorney’s fees because the

mandate provided no such direction.

       “The ‘mandate rule’ can be summarized as follows:

       ‘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.’” Pleasant Management, LLC v.
       Carrasco, 960 A.2d 216, 223 (R.I. 2008) (quoting United States v. Thrasher, 483
       F.3d 977, 981 (9th Cir. 2007)).

       Our mandate in Sisto, 68 A.3d at 617, stated, in relevant part, “we affirm the judgment of

the Superior Court * * * with respect to Sisto’s standing to file the application for expansion with

the CRMC, as well as with respect to the anti-SLAPP issue. * * * The papers may be remanded

to the Superior Court.” The mandate makes no mention of attorney’s fees in connection with

that appeal because that issue was not before us. Nevertheless, the fact that we did not explicitly

mention attorney’s fees in the mandate did not preclude the Superior Court from subsequently

awarding defendants attorney’s fees incurred in defending the judgment on appeal. See Perkins

v. Standard Oil Co. of California, 399 U.S. 222, 223 (1970).           Indeed, the assessment of

attorney’s fees is best handled by the Superior Court. See Keystone Elevator Co. v. Johnson &

Wales University, 850 A.2d 912, 920 (R.I. 2004) (noting that “[t]he trial justice is in the unique

position of observing the attorneys requesting the fees and is better able to judge the merits of a

particular request.”). Because it was silent with regard to attorney’s fees—which, we reiterate,



                                                -5-
are mandatory under § 9-33-2(d)—our mandate left the determination of the proper award of fees

to the Superior Court. See Perkins, 399 U.S. at 223. Therefore, the Superior Court did not vary

from our mandate when it considered defendants’ motion for appellate attorney’s fees. 5

                                           ii. Res Judicata

       Battling on, plaintiff also argues that the doctrine of res judicata barred the Superior

Court from entertaining defendants’ motion for attorney’s fees. However, res judicata is not

applicable to the case at hand because that doctrine bars the relitigation of issues in a second

cause of action. Torrado Architects v. Rhode Island Department of Human Services, 102 A.3d

655, 658 (R.I. 2014). Here, no second cause of action has been filed. Rather, the original cause

of action remains ongoing. Thus, the doctrine of res judicata is inapposite. 6

                                 B. Reasonableness of the Fees

       The plaintiff next argues that the Superior Court erroneously awarded defendants

attorney’s fees because they failed to submit sufficient documentation to substantiate their

request. Specifically, he contends that the records submitted by defendants did not identify the

hours expended on the anti-SLAPP claim versus the other issues on appeal and may have been

duplicative. Thus, plaintiff contends that the hearing justice abused his discretion by arbitrarily

awarding defendants $8,924.60 in fees.




5
  This line of reasoning also effectively disposes of plaintiff’s contention that defendants’ failure
to explicitly request an award of fees from this Court prevented the Superior Court from
awarding them. Furthermore, while the better practice may have been to request the fees in their
initial appeal, plaintiff does not point to any statutory or common law rule that requires it.
6
  In a last-ditch effort, plaintiff argues that defendants cannot recover attorney’s fees because
they did not actually pay the fees; rather, their insurance company did. However, there is no
requirement that a prevailing party pay its fees out of pocket in order to recover, and, at oral
argument, defendants’ counsel represented that all but approximately $1,000 of the fee award
would be recouped by their insurance company, presumably pursuant to a subrogation
agreement.
                                                -6-
          This Court reviews an award of attorney’s fees for an abuse of discretion. Pearson v.

Pearson, 11 A.3d 103, 108 (R.I. 2011) (citing Blue Cross & Blue Shield of Rhode Island v.

Najarian, 911 A.2d 706, 709 (R.I. 2006)). “It is well within the authority of the trial justice to

make an attorneys’ fee award determination after considering the circumstances of the case.”

Keystone Elevator Co. v. Johnson & Wales University, 850 A.2d 912, 920 (R.I. 2004) (citing

Schroff, Inc. v. Taylor-Peterson, 732 A.2d 719, 721 (R.I. 1999)). After reviewing the record and

the hearing justice’s decision, we conclude that he did not abuse his discretion when he awarded

attorney’s fees to defendants in connection with their appeal. The hearing justice carefully

considered the circumstances surrounding this unique and drawn-out case. He conducted an in

camera review of the invoices submitted with defendants’ motion and calculated a fee in light of

what he had before him.

          In determining the “lodestar,” 7 the hearing justice first reduced defendants’ request of

$29,748.65 by 75 percent to more accurately reflect the time spent on the “tangentially-related”

anti-SLAPP claim and eliminate time that may have been spent on the other issues that were on

appeal.     While an across-the-board reduction is certainly not the most precise method for

7
  The “lodestar” is the starting point for determining the reasonableness of attorney’s fees and is
“the number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.” Matter of Schiff, 684 A.2d 1126, 1131 (R.I. 1996) (quoting Pontarelli v. Stone, 781 F.
Supp. 114, 120 (D.R.I. 1992) and Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Since our
opinion in Colonial Plumbing & Heating Supply Co. v. Contemporary Construction Co., 464
A.2d 741, 744 (R.I. 1983), “affidavits or expert testimony establishing the criteria on which a fee
award is to be based” have been required. Furthermore, we note that our recent opinion in Tri-
Town Construction Co. v. Commerce Park Associates 12 LLC, Nos. 2015-22-A & 2015-146-A,
slip. op. at 18 (R.I., filed June 22, 2016) held that such affidavits or testimony must be submitted
by independent counsel who are “not representing the parties to the action in which fees are
sought.” In that case, however, the propriety of the affidavit completed by the party seeking
attorney’s fees—which was indeed completed by the party’s own attorney—was specifically
challenged. Our holding in that case did not extend to the scenario in which neither the
reasonableness of the fees nor the propriety of the affidavit submitted by the party seeking fees is
challenged, as was the case here.


                                                 -7-
calculating an award of attorney’s fees, the hearing justice was forced to make do with what he

had—which were billing records that, in his words, “d[id] not even begin to approach a diligent

accounting of the hours spent on the anti-SLAPP appeal” and from which he could not

“distinguish work performed on anti-SLAPP issues [from] time dedicated to other matters.”

Sisto v. America Condominium Association, Inc., 2015 WL1620069 * 3 (R.I. Super. April 8,

2015). In view of the records submitted by defendants, we cannot say that the trial justice

abused his discretion in making this reduction. See Codex Corp. v. Milgo Electronic Corp., 717

F.2d 622, 632 (1st Cir. 1983) (holding that it was not an abuse of discretion for the district court

to reduce an award of attorney’s fees where the submissions were “inadequate”); see also Role

Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (allowing reimbursement

for only 50 percent of attorney’s fees in light of the party’s “inadequate documentation, failure to

justify the number of hours sought, inconsistencies, and improper billing entries”).

       The hearing justice then increased the already-reduced fee by 5 percent based on the

complexity of the anti-SLAPP claim (relying largely on the fact that there was a dissent in Sisto

as to that issue) to reach a final award of $8,924.60. We see no abuse of discretion with this

determination, either. See Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496,

505 (2d Cir. 1980) (“the court may adjust the lodestar figure upward or downward to take

account of such factors as the * * * complexity of the litigation”).

       Given the record he was presented with and the protracted nature of this case, it is our

opinion that the hearing justice issued a particularly comprehensive and well-thought-out

thirteen-page decision explaining his case-specific reasoning for arriving at his final award of

attorney’s fees. As such, we cannot say he abused his discretion in doing so. However, we must




                                                 -8-
caution that, in the future, we will require more meticulous recordkeeping by attorneys seeking

an award of fees—our tolerance today is limited to the circumstances of this case.

                                                    IV

                                             Conclusion

       For the aforementioned reasons, we affirm the judgment of the Superior Court. The

papers in this case shall be returned to that court.

       Chief Justice Suttell did not participate.


       Justice Goldberg, dissenting. I respectfully dissent. This is chapter two of what I

consider to be an abuse of a citizen’s right to access our courts, particularly the Supreme Court.

After this Court’s decision in the underlying case, Sisto v. America Condominium Association,

Inc., 68 A.3d 603 (R.I. 2013) (Sisto I), the emboldened defendants submitted a request for

attorney’s fees to the Superior Court for a whopping $152,122.55. No explanation has been

provided for this exorbitant request that subsequently was reduced to $29,748.65, again without

explication. No contemporaneous billing records reflecting the actual time spent on this discrete

issue exist. No disinterested attorney testified by affidavit that the submission was, in his or her

opinion, a reasonable attorney’s fee request. Indeed, the only attorney who so opined was the

attorney requesting the fee, a circumstance overlooked by the trial justice.          Cf. Colonial

Plumbing & Heating Supply Co. v. Contemporary Construction Co., 464 A.2d 741, 744 (R.I.

1983) (declaring that, for the explicit purpose of providing a record upon which this Court may

review the propriety of the fee award, “affidavits or testimony establishing the criteria on which

a fee award is to be based should be required”); Kenney v. Hickey, 486 A.2d 1079, 1084 (R.I.

1985) (vacating fee for guardian ad litem based on the failure of the Family Court to follow the

majority rule set forth in Colonial Plumbing, 464 A.2d at 744, and requiring expert testimony on

                                                    -9-
the question of the reasonableness of an award of attorney’s fees). In Sisto I, the defendants’

Supreme Court brief for the anti-SLAPP issue consists of a scant nine pages and does not

concern a novel or difficult issue of law.


       In this case, it was impossible for the trial court, or anyone else for that matter, to

determine the lodestar for this extraordinary demand. It is well settled that “[t]he 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.’” In re Schiff, 684 A.2d 1126,

1131 (R.I. 1996) (quoting Pontarelli v. Stone, 781 F. Supp. 114, 120 (D.R.I. 1992) (attached as

an appendix to In re Schiff) and Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). This is the

guiding light for fee-shifting jurisprudence. Its absence in this case was excused by the trial

justice and, sadly, again by this Court. Indeed, the trial justice found that “[t]he billing records

here do not even begin to approach a diligent accounting of the hours spent on the anti-SLAPP

appeal.” The trial justice declared that he could not,


               “by review of these records, both redacted and unredacted,
               distinguish between work performed on anti-SLAPP issues and
               that time dedicated to other matters. * * * For example, it is
               impossible to determine how the seven hours spent ‘draft[ing the]
               appellate brief’ on November 1, 2012 was divided between the two
               issues.”



       The trial justice also lamented that there was only vague mention of correspondences

with clients, appellate strategy, oral-argument preparation, and brief drafting in the billing

records. The submission included fees for “countless phone conversations regarding the ‘status

of [the] appeal’ with each individual board member” that the trial justice found to “provide little

insight to the [c]ourt as to whether such phone calls were necessary or simply duplicative.”



                                             - 10 -
Further, “there was no attempt to abate billing entries that encompassed both fee-eligible and

non-fee-eligible work.” In the face of these glaring deficiencies, the fee request should have

been denied, and this Court should so hold.


       Additionally, the trial justice found that the fee request included work done on the

declaratory-judgment appeal—which is forbidden—and he rejected counsel’s affidavit testimony

that the requested fees did not include matters that were exclusively related to the declaratory-

judgment action.


       In my opinion, these damning findings should have ended this unfortunate episode, and

the request for fees should have been denied. And this Court should so hold. The trial justice,

however, proceeded to attempt to “separate the wheat from the chaff in calculating a reasonable

award.” Rather than carefully sifting through these unpalatable ingredients, he simply performed

a mathematical exercise and culled out 70 percent of the request. 8 The trial justice failed to set

forth his reasoning for awarding 30 percent of the request in the face of what the trial justice

acknowledged was inadequate documentation, a failure to justify the number of hours sought,

inconsistencies, and improper billing entries. In my opinion, this is an abuse of discretion and an

unjust result. The trial justice, on the basis of the request and the affidavit of counsel, should

have concluded, as do I, that this request shocks the conscience of the Court to such a degree that

fees should be denied. See Schiff, 684 A.2d at 1136.


       Finally, I pause to note that this is not the only decision this term by this Court

concerning an award of award attorney’s fees. In Tri-Town Construction Co. v. Commerce Park

8
 The trial justice first reduced the fee by 75 percent “to account for the relative apportionment
between the reasonable time necessary to prepare the anti-SLAPP and declaratory[-]judgment
matters” and then “increase[d] the already-reduced fee award by [five percent] to reach a lodestar
of $8[,]924.60”—resulting in an award of 30 percent of the amount most recently requested.

                                              - 11 -
Associates 12, LLC, No. 2015-22-A, No. 2015-146-A, slip op. at 18-19 (R.I., filed June 22,

2016), this Court reiterated the mandatory nature of our holding in Colonial Plumbing—that

affidavits or testimony of expert witnesses “must be from counsel who is a member of the Rhode

Island Bar and who is not representing the parties to the action in which fees are sought.” Tri-

Town Construction Co., slip op. at 18. Although this precise challenge was not made in the case

before us, the record before this Court, in my opinion, is replete with such shockingly egregious

deficiencies that the award constitutes an abuse of discretion. In Tri-Town Construction Co., we

unequivocally rejected the use of “affidavits and documents provided to the court by interested

parties.” Id. at 19. We also held that, “[a]lthough the standard of review of an order awarding

attorney’s fees is [an] abuse of discretion, we are of the opinion that this discretion can only be

exercised after competent evidence from independent counsel has been admitted.” Id. at 18-19

(emphasis added). In the case before us, we are doing just that—declaring that the trial justice

did not abuse his discretion based on “the record he was presented with and the protracted nature

of this case.” This is error. This error is compounded by our further justification that, “in the

future, we will require more meticulous recordkeeping by attorneys seeking an award of fees—

our tolerance today is limited to the circumstances of this case.” I am not on board.


                               The Denial of Access to the Courts


       My second concern in this case echoes that of my original dissent: that admittedly false

letters sent to the Coastal Resources Management Council by counsel for the defendants and by

an individual board member, declaring that Sisto did not own the property upon which he sought

to expand his unit, were not “directed at petition or free speech,” a required finding to trigger the

anti-SLAPP protections of the statute. G.L. 1956 § 9-33-2(a). Although the plaintiff had every

right to appeal from the original finding that his complaint violated the anti-SLAPP statute and


                                             - 12 -
certainly presented this Court with a justiciable controversy, he did so at the risk of an additional

adverse attorney’s fee award—that is more than the original attorney’s fee. This is unjust. The

result today is emblematic of the very harm I alluded to in my dissenting opinion in Sisto I, 68

A.3d at 618, 620: the denial of access to our courts. It is the responsibility of this Court to guard

against infringement of the rights of citizens to turn to the judiciary for resolution of their

disputes. This is the essence of petitioning activity that ought to be paramount in this case.

Consequently, I respectfully dissent.




                                             - 13 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Bennie Sisto, as the Trustee of Goat Island Realty Trust v.
                      America Condominium Association, Inc., et al.

CASE NO:              No. 2015-181-Appeal.
                      (NC 08-1119)

COURT:                Supreme Court

DATE OPINION FILED: June 29, 2016

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Edward C. Clifton

ATTORNEYS ON APPEAL:

                      For Plaintiff: Robert D. Wieck, Esq.

                      For Defendants: Robert C. Shindell, Esq.
                                      C. Alexander Chiulli, Esq.
                                      Edmund A. Allcock, Esq.
