                                                                 Supreme Court

                                                                 No. 2014-184-Appeal.
                                                                 No. 2014-185-Appeal.
                                                                 No. 2014-186-Appeal.
                                                                 (NC 11-234)




America Condominium Association, Inc. et :
                 al.

                    v.                      :

   Stefania M. Mardo, as Trustee of the     :
     Constellation Trust—2011 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. 2014-184-Appeal.
                                                                  No. 2014-185-Appeal.
                                                                  No. 2014-186-Appeal.
                                                                  (NC 11-234)
                                                          Concurring opinion begins on page 22
                                            Concurring and dissenting opinion begins on page 23
                                            Concurring and dissenting opinion begins on page 26


America Condominium Association, Inc. et :
                 al.

                     v.                       :

    Stefania M. Mardo, as Trustee of the      :
      Constellation Trust—2011 et al.


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

                                           OPINION

       Justice Robinson, for the Court. The plaintiffs, America Condominium Association,

Inc. (America) and Capella South Condominium Association, Inc. (Capella), appeal from a

February 25, 2014 judgment1 issued after a bench trial in Newport County Superior Court; that

judgment provided that the defendants, Stefania M. Mardo, as Trustee of the Constellation

Trust—2011 (the Trust) and Harbor Houses Condominium Association, Inc. (Harbor Houses),

were liable for breach of contract and for committing a common law trespass. The trial justice

further concluded that Count Three of the plaintiffs’ complaint, which alleged that the defendants

breached restrictive covenants contained in the Goat Island South Condominium Second




1
      The February 25, 2014 judgment reflects the holdings of the trial justice in an August 22,
2012 written decision.


                                               -1-
Amended and Restated Declaration of Condominium (GIS SAR), was moot and that the

plaintiffs were not entitled to an award of attorneys’ fees and costs.

       The plaintiffs contend on appeal that the trial justice committed the following errors:

(1) finding a continuing trespass but failing to issue a mandatory permanent injunction requiring

the removal of the trespass; (2) finding Count Three of plaintiffs’ complaint to be moot; and

(3) failing to award attorneys’ fees and costs to plaintiffs in accordance with the GIS SAR. The

defendants filed a cross-appeal. In support of the cross-appeal, the Trust argues that it was error

for the Superior Court to have found that defendants had breached the GIS SAR and to have

found that defendants had committed a common law trespass.2

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

part and we vacate that judgment in part.

                                                  I

                                         Facts and Travel

       This is not the first time this Court has addressed controversies at the Goat Island South

Condominium (GIS). In fact, it is the fifth time we have been called upon to quell these

seemingly unending disagreements.           See 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); 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). We deem it important to reiterate once more that “[w]e are more than persuaded



2
        On appeal, Harbor Houses invites us to reconsider our holding in Sisto v. America
Condominium Association, Inc., 68 A.3d 603, 614 (R.I. 2013), to the effect that consent of all
154 Goat Island South unit owners is necessary for any expansion of Harbor Houses
condominiums. After careful consideration, we have made our opinion on that matter clear; and,
therefore, we decline Harbor Houses’ invitation.


                                                -2-
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). In furtherance of that goal, we refer the interested reader to our previous

opinions for a full recitation of the facts, and we confine ourselves to only those facts that are

relevant to this appeal.

       For the purposes of this appeal, it is necessary to reiterate the basic structure of the GIS

condominiums:

               “Goat Island South Condominium 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. Likewise, these
               declarations must comply with Rhode Island’s Condominium Act,
               G.L.1956 chapter 36.1 of title 34.” Sisto, 68 A.3d at 606.

According to the findings of fact by the trial justice in the instant case, the Trust has owned Unit

18 in Harbor Houses since January of 2011. Harbor Houses’ declaration makes it clear that the

yard which surrounds Unit 18 is designated as a limited common element, which in the instant

case means it is “reserved for the use by one or more but fewer than all [u]nits, and intended for

the exclusive use” of Unit 18. Id. (internal quotation marks omitted). On April 19, 2011, before

this Court’s decision in Sisto, 68 A.3d at 603, plaintiffs filed the instant action seeking injunctive

relief to bring a halt to the expansion of Unit 18 onto a limited common element—specifically,

the yard surrounding Unit 18 on which a foundation had been built by Unit 18’s previous

owners.    The plaintiffs’ complaint alleged breach of the GIS SAR, violation of restrictive

covenants, common law trespass, and violation of Rhode Island’s Condominium Act, G.L. 1956




                                                -3-
chapter 36.1 of title 34 (the Act). A bench trial was held on May 12, 17, 27, and 31, June 14, and

September 22, 2011. We relate below the salient aspects of what transpired at that trial.

                                                 A

                                      The Trial Testimony

                                1. The Testimony of Bennie Sisto

       As the trial justice’s decision in the instant case reflects, Bennie Sisto is the father of

trustee Stefania Mardo, and he entered this case as “an additional trustee” prior to the Superior

Court’s decision.

       Mr. Sisto testified at trial, during which testimony he acknowledged that Unit 18 was

being expanded by the addition of exterior walls. However, he further stated that the “original

expansion of Harbor Houses Number 18 was obviously back when [the previous owners] had

ownership of the property back in 2000, 2001;” he added that his construction was only on the

“existing foundation.” Mr. Sisto conceded that his expansion of Unit 18 did expand it past its

“1988 footprint,” but he reiterated that the expansion was confined to the existing foundation,

which was on the property when he purchased it.

       It was Mr. Sisto’s testimony that, at the time he purchased Unit 18, the foundation on

which he was building was then being used as a “patio and a deck.” However, it was his further

testimony that the foundation was not intended to be a patio or a deck but, rather, had been part

of a “proposed building expansion” by the previous owners. He added that “a previous Court

ordered that th[e] foundation be put into the ground” but the parties then “agreed not to complete

construction until the Court case ended.” Referring to his affidavit and an attached judgment of

the Superior Court (entered as an exhibit at trial), Mr. Sisto also testified that it was his belief




                                               -4-
that the expansion of Unit 18 had been later “expressly authorized” by the Superior Court

judgment attached to his affidavit.

       The Superior Court judgment attached to Mr. Sisto’s affidavit is dated December 14,

2009 and reflects a decision by a Superior Court justice to the effect that the defendants in that

action (which did not include America or Capella) were enjoined from interfering with the right

of the previous owners of Unit 18 to proceed with “renovations;” the judgment allowed the

“renovations” as laid out in plans issued and submitted to the Harbor Houses Condominium

Board in May of 2001.      It is also worth noting that trial exhibit 8 was a decision of the GIS

Board, dated February 1, 2011, which stated that there was no objection by any of the unit

owners to the “plans for Harbor Houses # 18;” there was no assertion that the “proposed

improvements, alterations or changes would significantly diminish the water view of such

residence units as viewed from the glass doors/windows/balconies of such residence units.”

Despite the fact that the decision of the GIS Board was dated after the Trust bought the property,

that decision is addressed to the previous owners. It was Mr. Sisto’s testimony on cross-

examination that the plans he used for the expansion of Unit 18 were actually those that were

commissioned by the previous owners, and he added that his expansion was smaller than the

expansion intended by the previous owners.

       Mr. Sisto’s affidavit also stated that “ten (10) of the nineteen (19) Harbor Houses unit

owners have expanded over the years, including most recently in 2008,” and he cited specifically

to the expansion of Harbor Houses Unit 10 to support the contention that the Trust was within its

rights in expanding Unit 18. However, Mr. Sisto did concede at trial that the area he was

expanding on was “owned in undivided percentage interest” by the 154 unit owners at GIS and

that he did not have the unanimous approval of all 154 unit owners to expand his condominium.




                                              -5-
       It was further Mr. Sisto’s testimony that, prior to his commencing the expansion of Unit

18, Natalie Volpe, the President of the GIS Board, communicated with him by email regarding

his expansion. Her email was entered as an exhibit at trial. The email cited as authority the

Newport County Superior Court rulings which this Court eventually reviewed in Sisto, 68 A.3d

at 603. (The appeal was still pending before this Court at the time when Ms. Volpe sent the

email.) The email contained the following pertinent language:

                       “ * * * [I]f a portion of the limited common element is to
               be permanently occupied, thereby necessitating a reallocation, than
               [sic] the unanimous consent of 154 unit owners must be present in
               order to amend the declaration. Additionally, in accordance with
               basic property law, it is prohibited to permanently occupy a limited
               common element to the absolute exclusion of the other 154
               property owners without their consent.
                       “ * * * A recent ruling in Newport * * * has resulted in an
               order for the construction of an addition to an existing house be
               taken down. The precedent has been established. Please do not take
               further action on [Unit] 18 * * * at this time as GIS will enforce
               the [GIS SAR and the Act].”

Mr. Sisto testified that he understood that email to be the personal opinion of Ms. Volpe, not the

opinion of the GIS Board, since “[t]hey did not vote on [it].”

                        2. The Remaining Pertinent Testimony at Trial

       Sandra Conca testified at trial that she was the President of America’s Board. It was her

further testimony that she did not consent to the expansion of Unit 18, and she expressed her

belief that a building could not be constructed on Unit 18’s yard since it was a limited common

element; she added that such expansions would decrease the overall ownership percentage of the

common elements of each unit owner. She further stated that at least one owner of a different

Harbor Houses condominium had been allowed to expand in the past.




                                               -6-
       Edmond McKeown testified that he owned an America condominium and that he did not

consent to the expansion of Harbor Houses Unit 18 onto a limited common element; he added

that the expansion of Unit 18 greatly increased the size of that unit.

                                                 B

                                  The Superior Court Decision

       In her August 22, 2012 decision, the trial justice began by noting that plaintiffs’ motion

for a preliminary injunction had been “advanced to a trial on the merits.” The trial justice then

proceeded to make findings of fact and credibility determinations. She found Mr. Sisto to be a

“very genial, respectful and forbearing gentlem[a]n [who] provided the [c]ourt with considerable

information concerning * * * the construction history of unit 18.”          She noted that he

acknowledged that the unanimous consent of 154 unit owners had not been obtained, but she also

noted that he had testified that he was not expanding Unit 18 beyond the existing foundation,

which had been installed by the previous owners in connection with a planned expansion. The

trial justice also noted that Mr. Sisto testified that the expansion consisted of placing exterior

walls “‘where there were no walls before’” and that he acknowledged that the expansion was

altering the boundaries of his unit.

       The trial justice proceeded to find that defendants were acting in violation of § 34-36.1-

2.17(d) and § 34-36-7(b) of the Act, which statutory provisions require unanimous consent of all

unit owners with respect to an amendment of the GIS SAR allowing for expansion by changing

of the boundaries of any unit or the allocated interests of a unit; she added that the GIS SAR

provided that it was subject to the Act and that, therefore, the provisions of the GIS SAR must be

interpreted to conform with the requirements of the Act. Accordingly, she found that defendants

had violated the GIS SAR as well as the above-cited statutory provisions.




                                                -7-
       At that juncture, the trial justice proceeded to state: “If the [c]ourt was permitted to view

this controversy through a purely equitable lens, a different outcome could be considered.” She

noted that the expansion of Unit 18 did not result in any view obstruction for any of the America

or Capella condominiums. She added that nine other Harbor Houses condominiums had been

expanded “without objection or challenge from America or Capella.” (Internal quotation marks

omitted.) She then granted plaintiffs’ request for injunctive relief precluding further expansion

of Unit 18 but declined to grant plaintiffs’ request that the court issue a mandatory injunction

ordering the Trust to remove all construction on Unit 18 that expanded it beyond its “‘pre-

expansion footprint.’” She further declined to award plaintiffs attorneys’ fees or court costs.

       On February 25, 2014, a final judgment was entered. That judgment held: (1) that the

expansion provisions of § 2.3 of the GIS SAR violated the Act and could not be enforced;

(2) that defendants had breached §§ 2.3(a)(i)(A) & (M) and § 11.1(b) of the GIS SAR; (3) that no

judgment need enter on Count Three of plaintiffs’ complaint, which alleged a violation of

restrictive covenants, since the trial justice deemed that issue to be moot; and (4) that defendants

had committed a common law trespass. The judgment expressly denied plaintiffs’ request for

attorneys’ fees and costs. Timely appeals were filed.

                                                 II

                                        Issues on Appeal

       The plaintiffs make three allegations of error on appeal: (1) that, even though the trial

justice properly found a continuing trespass, she erred when she “failed to issue a mandatory

permanent injunction” requiring the removal of the trespass; (2) that the trial justice erred in

declaring Count Three of plaintiffs’ complaint moot; and (3) that the trial justice “committed an




                                               -8-
error of law by failing to recognize the contractual basis for awarding attorneys [sic] fees as

provided by * * * the GIS SAR.”

       In its cross-appeal, the Trust contends: (1) that the trial justice erred “as a matter of law in

ruling that the Trust breached the GIS SAR;” and (2) that the trial justice committed a further

error of law when she ruled that the Trust committed a trespass.

                                                 III

                                              Analysis

       We must begin our analysis by noting that much of the testimony and the trial justice’s

decision in the instant case are devoted to the issue of whether or not expansion of a GIS

condominium onto a limited common element required the approval of all 154 unit owners. At

that time, the parties and the trial justice did not have the benefit of our decision in Sisto, 68 A.3d

at 603. In Sisto, 68 A.3d at 614, we definitively held that the Act requires the consent of all 154

unit owners before any unit could expand its boundaries. As such, the parties (with the exception

of Harbor Houses—see footnote 2, supra) do not raise that issue on appeal. Accordingly, it is

established that the Trust’s expansion of Unit 18 violated the Act.

                                                  A

                                           The GIS SAR

                                      1. Standard of Review

       In reviewing a condominium declaration, “we find it appropriate to apply the laws of

contract construction.” Sisto, 68 A.3d at 611; see Town Houses at Bonnet Shores Condominium

Association v. Langlois, 45 A.3d 577, 583 (R.I. 2012). As such, we conduct a de novo review.

Sisto, 68 A.3d at 612; see Bliss Mine Road Condominium Association v. Nationwide Property

and Casualty Insurance Co., 11 A.3d 1078, 1083 (R.I. 2010).




                                                 -9-
       We have often stated that, when we review a contract on appeal, the contract “must be

viewed in its entirety, and the contract terms must be assigned their plain and ordinary

meanings.”     Rivera v. Gagnon, 847 A.2d 280, 284 (R.I. 2004); see Bliss Mine Road

Condominium Association, 11 A.3d at 1083. Consequently, “[i]f the contract terms are clear and

unambiguous, judicial construction is at an end for the terms will be applied as written.” Rivera,

847 A.2d at 284 (citing W.P. Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994)).

Moreover, “[t]he Court will refrain from engaging in mental gymnastics or from stretching the

imagination to read ambiguity into a [contract] where none is present.” Bliss Mine Road

Condominium Association, 11 A.3d at 1083 (internal quotation marks omitted). A contract is

ambiguous only if it is “reasonably and clearly susceptible of more than one interpretation.”

Rivera, 847 A.2d at 284 (internal quotation marks omitted).

                       2. The Trust’s Cross-Appeal: Breach of Contract

       The first question with which we are presented is whether or not, in addition to violating

the Act, the expansion of Unit 18 also violated the GIS SAR. In its cross-appeal, the Trust raises

the contention that the trial justice erred in finding that the Trust violated the GIS SAR. It

contends that, due to the fact that the expansion provisions in § 2.3 of the GIS SAR were held by

the trial justice to be violative of the Act, those provisions are “unenforceable and cannot form

the basis of a breach of contract.” It further argues that § 11.1(b) of the GIS SAR is not

applicable to the instant case.

       In her final judgment in this case the trial justice found that §§ 2.3(a)(i)(A) & (M) and

§ 11.1(b) of the GIS SAR had been breached. Even assuming arguendo that the Trust is correct

that § 2.3 of the GIS SAR could not be the basis for a finding of breach of contract due to the

fact that that section was found to be unenforceable by the trial justice, there are alternative




                                              - 10 -
grounds on which this Court can conclude that the trial justice properly held that the GIS SAR

was breached—namely, § 11.1(b). Section 11.1(b) of the GIS SAR adopts the language of § 34-

36.1-2.17(d) of the Act and provides as follows:

                      “Consistent with subsection 34-36.1-2.17(d) of the Act,
               except to the extent expressly permitted or required by the Act, no
               amendment may * * * change the boundaries of any Unit * * * in
               the absence of unanimous consent of the Unit Owners.”

It would not be possible for this Court to rule that the language of § 11.1(b) was ambiguous

without engaging in the “mental gymnastics” and “stretching [of] the imagination” which we

have consistently refused to do when confronted with clear contractual language. Bliss Mine

Road Condominium Association, 11 A.3d at 1083 (internal quotation marks omitted). We

declared in Sisto, 68 A.3d at 612-14, that the Act required unanimous consent of all 154 unit

owners before a change in the boundaries of any unit could be made, and § 11.1(b) of the GIS

SAR clearly and unambiguously echoes that requirement; it incorporates the language of the Act

itself and requires unanimous consent to amend a condominium declaration to change the

boundaries of a unit. See Rivera, 847 A.2d at 284. Mr. Sisto admitted in his testimony at trial

that he did not have the unanimous consent of all 154 unit owners to change the boundaries of

Unit 18. Accordingly, it necessarily follows that the expansion of Unit 18 violated the clear and

unambiguous language of § 11.1(b) of the GIS SAR.

       The Trust contends that it could not have breached § 11.1(b) of the GIS SAR because that

section applies to amendments to the GIS SAR, whereas the Trust did not seek an amendment of

the GIS SAR. However, this argument is without merit. The Act specifically states that “[t]he

percentage of the undivided interest of each unit owner in the common areas and

facilities * * * shall not be altered without the consent of all of the unit owners expressed in an

amended declaration duly recorded.” Section 34-36-7(b) (emphasis added). Section 34-36.1-



                                              - 11 -
2.17(d) then requires, as we recognized in Sisto, 68 A.3d at 613-14, that an amendment to

change the boundaries of a unit be the result of “unanimous consent of [all the other] unit

owners.” The amendment language in § 34-36.1-2.17(d) is clearly reflective of the requirement

of an amendment laid out in § 34-36-7(b), and it is undisputed that both statutory sections are

applicable to the instant case.    Importantly, § 11.1(b) of the GIS SAR contains the same

amendment language as § 34-36.1-2.17(d). Therefore, the fact that the Trust did not seek an

amendment does not change the fact that the Act requires the Trust to seek such an amendment

before expanding the boundaries of the unit and that the GIS SAR incorporates that requirement

in § 11.1(b). In our judgment, § 11.1(b) is clearly applicable to the instant case.

       Accordingly, for the just-discussed reasons, we conclude that the trial justice did not err

in finding that the Trust breached the GIS SAR.

               3. The Plaintiffs’ Appeal: Count Three in Plaintiffs’ Complaint

       The plaintiffs posit on appeal that the trial justice “committed an error of law in declaring

Count Three of the plaintiff’s [sic] complaint moot because the trespass * * * continues[] to

violate the restrictive covenants of the GIS SAR.” They aver that the violation of the restrictive

covenants would require removal of the trespass.

       In Count Two of plaintiffs’ complaint, they allege that “[b]y expanding Harbor Houses

Unit No 18 onto limited common elements and changing the boundaries of Harbor Houses Unit

No. 18, without obtaining the required amendment,” the Trust was in breach of the GIS SAR.

Similarly, in Count Three of their complaint, the plaintiffs alleged that “[b]y expanding Harbor

Houses Unit No. 18 onto limited common elements and by changing the boundaries of Harbor

Houses Unit No. 18 without obtaining the required amendment,” the Trust violated the restrictive

covenants that “run with the land.” The complaint requests relief based on those two counts as




                                               - 12 -
well as a count alleging common law trespass; specifically, it requests an injunction prohibiting

the construction of the proposed expansion on Unit 18 and an injunction requiring the removal of

“any and all construction or improvements that encroach upon limited common elements and/or

change the boundaries of Harbor Houses No. 18 * * *.”

       Thus, in plaintiffs’ complaint, the same relief is sought based on the same set of facts in

both Counts Two and Three. The trial justice, having found that there was a breach of contract

in this case and a common law trespass, awarded what she considered to be the appropriate

damages based on the relief sought in the complaint. Once she made a decision on the breach of

contract claim and awarded the appropriate damages, we can perceive no error in the trial

justice’s declining to contend with the restrictive covenants claim since it was not necessary for

her to do so. See generally Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009)

(stating that it is this Court’s “usual policy of not opining with respect to issues about which [it]

need not opine”).

                     4. The Plaintiffs’ Appeal: Attorneys’ Fees and Costs

       The plaintiffs aver that the trial justice committed an error of law when she failed to

award them attorneys’ fees and costs.        The Trust counters by claiming that, because the

expansion provisions in § 2.3 of the GIS SAR were found to be unenforceable, breach of those

sections may not form the basis of an award of attorneys’ fees and costs under the GIS SAR.

       We have repeatedly stated that, in conducting a review of a trial justice’s award of

attorneys’ fees, “[t]he issue of whether there exists a basis for awarding attorneys’ fees generally

is legal in nature, and therefore our review of such a ruling is de novo.” Dauray v. Mee, 109

A.3d 832, 845 (R.I. 2015) (emphasis in original) (quoting Blue Cross & Blue Shield of Rhode

Island v. Najarian, 911 A.2d 706, 709 (R.I. 2006)); see also Danforth v. More, 129 A.3d 63, 72




                                               - 13 -
(R.I. 2016). Accordingly, we have further stated that “[o]nly if it is determined that there is such

a [legal] basis, then this Court will review a motion justice’s actual award of attorneys’ fees for

an abuse of discretion.” Dauray, 109 A.3d at 845 (quoting Najarian, 911 A.2d at 709); see also

Danforth, 129 A.3d at 72.

       This Court has long adhered to the “American rule” that “requires each litigant to pay its

own attorney’s fees absent statutory authority or contractual liability.” Moore v. Ballard, 914

A.2d 487, 489 (R.I. 2007); see Najarian, 911 A.2d at 710; see also Insurance Company of North

America v. Kayser-Roth Corp., 770 A.2d 403, 419 (R.I. 2001). Consequently, we begin our

analysis by looking to the relevant provision in the GIS SAR to determine whether there is a

basis for plaintiffs’ claim for attorneys’ fees and costs. Section 11.3 states in pertinent part as

follows:

                        “Violation of any of the terms of the [GIS SAR] * * * shall
               be grounds for relief which will include, but not be limited to, any
               actions for money damages, injunctive relief, foreclosure of the
               lien pursuant to the Act, or any combination thereof, each such
               remedy to be cumulative and not exclusive. Any such violator shall
               be liable for all court costs and attorney’s fees incurred in
               enforcing the rights pursuant to the preceding sentence and failure
               or forbearance by any person in addressing any violation thereof
               shall not be deemed a waiver of such violation or the right to do so
               at a later time.” (Emphasis added.)

On the basis of our reading of § 11.3 and our review of the entirety of the GIS SAR, we have

come to the ineluctable conclusion that § 11.3 does 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. In our opinion, the language of § 11.3 is susceptible to only one meaning, and we must

apply that plain and ordinary meaning. See Rivera, 847 A.2d at 284; see also Bliss Mine Road

Condominium Association, 11 A.3d at 1083. The present action seeking injunctive relief was

brought by plaintiffs to enforce their rights pursuant to § 11.1(b) (which incorporates by



                                               - 14 -
reference § 34-36.1-2.17(d) of the Act), in addition to § 2.3. Due to the fact that the rights being

enforced are provided for in the GIS SAR, § 11.3 is controlling in this case.

       We are not convinced by the Trust’s argument that attorneys’ fees and costs should not

be awarded in the instant case because the expansion provisions in § 2.3 of the GIS SAR were

found to be unenforceable by the trial justice and that, therefore, any violation of those

provisions cannot be the basis for an award of attorneys’ fees. 3 We have already concluded that,

regardless of whether or not the Trust breached § 2.3 of the GIS SAR, it did breach § 11.1(b),

which can also be a basis for the award of attorneys’ fees and costs. Consequently, the clear

terms of § 11.3 provide a basis for an award of attorneys’ fees and costs to plaintiffs in this case.

       Having determined that a valid basis for an award of attorneys’ fees and costs exists, we

now review the actual award under an abuse of discretion framework. See Dauray, 109 A.3d at

845. While a trial justice enjoys considerable discretion in determining the value of an award of

attorneys’ fees, such discretion is not unbridled and does not allow for a direct contravention of a

mandatory award of fees contained in the GIS SAR. Here, the word “shall” in § 11.3 of the GIS

SAR dictates that an award of attorneys’ fees and costs is mandatory following a breach of the

agreement. Indeed, if we were to allow the trial justice to award no fees, the mandatory award of

fees in the GIS SAR would completely lack force. See Rodrigues v. DePasquale Building and

Realty Co., 926 A.2d 616, 624 (R.I. 2007) (stating that “[u]nder established contract law

principles, when there is an unambiguous contract and no proof of duress or the like [(i.e., proof

3
        The Trust makes several additional arguments to support its contention that attorneys’
fees and costs should not have been awarded in this case. It posits that § 11.3 allows for such
fees and costs only if the action being brought is to enforce the terms of the GIS SAR, not the
requirements of the Act, and it cites to a number of cases that it considers to be supportive of that
argument. It also contends that it did not breach the GIS SAR. However, we have already
concluded that the Trust breached the GIS SAR; and, therefore, the present action was brought to
enforce the terms of the GIS SAR, not merely the terms of the Act. Consequently, the terms of
§ 11.3 are applicable to the instant case.


                                                - 15 -
that the contract involved was a contract of adhesion)], the terms of the contract are to be applied

as written”) (emphasis added) (internal quotation marks omitted).

       Given our conclusion that a valid basis for an award of attorneys’ fees exists, and that an

award of no fees in this context would constitute an abuse of the trial justice’s discretion, we

remand for the trial justice’s valuation of the attorneys’ fees and costs to be awarded.

       Accordingly, we hold that the trial justice did not err in determining that the Trust had

breached the GIS SAR or in declining to opine on the restrictive covenants count in plaintiffs’

complaint.   However, we do find error with respect to the trial justice’s failure to award

attorneys’ fees and costs to plaintiffs based on the terms of the GIS SAR.

                                                 B

                                             Trespass

                                      1. Standard of Review

       When examining a judgment in a nonjury case, this Court will reverse if “it can be shown

that the trial justice misapplied the law, misconceived or overlooked material evidence[,] or

made factual findings that were clearly wrong.” Rose Nulman Park Foundation ex rel. Nulman

v. Four Twenty Corp., 93 A.3d 25, 28 (R.I. 2014) (quoting Lamarque v. Centreville Savings

Bank, 22 A.3d 1136, 1139-40 (R.I. 2011)). A decision by a trial justice with regard to injunctive

relief is also “discretionary in nature, and such a decision will not be disturbed on appeal absent a

showing of abuse of discretion or error of law.” North End Realty, LLC v. Mattos, 25 A.3d 527,

530 (R.I. 2011). In addition, as we have frequently stated, issues of law are reviewed de novo.

Rose Nulman Park Foundation ex rel. Nulman, 93 A.3d at 29; see also Cullen v. Tarini, 15 A.3d

968, 977 (R.I. 2011).




                                               - 16 -
                     2. The Trust’s Cross-Appeal: Common Law Trespass

       The Trust contends that the trial justice erred as a matter of law in finding that the

expansion of Unit 18 constituted a common law trespass because the “area over which the

expansion was made is property that the Trust owns [as a tenant in common] and had the

exclusive right to use” and “the Trust had the consent of GIS and Harbor Houses.”

       The trial justice stated that the following finding of hers was dispositive of plaintiffs’

trespass claim: “Expansion of a unit onto a common area causes ‘a de facto alteration of the

percentage of the undivided interest which each owner has in the common areas * * *.’”

(quoting Strauss v. Oyster River Condominium Trust, No. 114843, 1992 WL 12153337, at *23

(Mass. Land Ct. Oct. 27, 1992)). We have conducted a detailed review of the parties’ arguments

and the authority cited in support of those arguments. That review leads us to the conclusion that

the Trust wrongfully appropriated the limited common element on which its expansion is built;

therefore, we are unable to perceive any error on the part of the trial justice in this regard.

                        3. The Plaintiffs’ Appeal: Mandatory Injunction

       We must now turn our attention to plaintiffs’ argument that, because the trial justice

found a continuing trespass, she erred when she failed to issue a mandatory injunction requiring

the removal of the trespass. They allege that, when a trespass is found, an injunction mandating

the removal of the trespass is required by law, except in exceptional circumstances—which they

argue are not present in this case. They further point out that the trial justice did not cite to any

exceptional circumstances when reaching her decision. Moreover, they contend that the Trust

had notice and a warning that its expansion violated the Act in the form of the then-existing

Superior Court judgments (which we eventually reviewed in Sisto, 68 A.3d at 603), and the

email to Mr. Sisto from Ms. Volpe; therefore, according to plaintiffs, no exceptional




                                                - 17 -
circumstances or balancing of the equities should be considered in the instant case. Lastly,

plaintiffs add that the result they seek would not operate oppressively or inequitably.

       Our recent opinion in Rose Nulman Park Foundation ex rel. Nulman, 93 A.3d at 29

(quoting Santilli v. Morelli, 102 R.I. 333, 338, 230 A.2d 860, 863 (1967)), referenced our

“general rule” that “[a] continuing trespass wrongfully interferes with the legal rights of the

owner, and in the usual case those rights cannot be adequately protected except by an injunction

which will eliminate the trespass.” Indeed, in our opinion in Santilli, we stated that:

               “[T]he owner of land is entitled to a mandatory injunction to
               require the removal of a structure that has been unlawfully placed
               upon his land, and the fact that such owner has suffered little or no
               damage because of the offending structure, or that it was erected in
               good faith, or that the cost of its removal would be greatly
               disproportionate to the benefit accruing to the plaintiff from its
               removal, is not a bar to the granting of [injunctive] relief.
               However, the existence of such circumstances may in exceptional
               cases move the court to withhold the [injunctive] relief
               contemplated by the general rule.” Santilli, 102 R.I. at 338, 230
               A.2d at 863; see Renaissance Development Corp. v. Universal
               Properties Group, Inc., 821 A.2d 233, 238 (R.I. 2003).

Such exceptional circumstances would exist “where the substantial rights of the landowner may

be properly safeguarded without recourse to an injunction which in such cases would operate

oppressively and inequitably.” Santilli, 102 R.I. at 338, 230 A.2d at 863 (internal quotation

marks omitted); see Adams v. Toro, 508 A.2d 399, 401 n.1 (R.I. 1986). A court may “withhold

injunctive relief after balancing the equities or, put another way, considering the relative

hardships to the parties.” Rose Nulman Park Foundation ex rel. Nulman, 93 A.3d at 30. More

specifically, we have held that exceptional circumstances “include, but are not limited to,

acquiescence, laches, or a de minimis trespass.” Id. at 29.

       That being said, this Court has maintained that “where the encroachment was intentional,

in that [the] defendant proceeded despite notice or warning, or where he [or she] failed to take



                                               - 18 -
proper precautions to ascertain the boundary” we will not “balance the equities” or consider the

“relative convenience or hardship [to each party] involved.” Renaissance Development Corp.,

821 A.2d at 238 (internal quotation marks omitted). It is important to reiterate, as well, that “this

Court has emphasized [the fact that] ‘[t]he issuance and measure of injunctive relief rest in the

sound discretion of the trial justice.’” Rose Nulman Park Foundation ex rel. Nulman, 93 A.3d at

30 (quoting Cullen, 15 A.3d at 981). It is with that standard of review in mind that we turn to

plaintiffs’ contentions on appeal.

       We begin by acknowledging that Mr. Sisto received an email from Ms. Volpe requesting

that he not take any further action on the expansion of Unit 18 due to the decisions of the

Superior Court, which were then pending on appeal in this Court and would eventually be

reviewed in our opinion in Sisto, 68 A.3d at 603. However, although it is a very close question,

in our view the notice provided by Ms. Volpe’s email is not of such moment as to cause us to

conclude that a balancing of the equities by the trial justice would have been an abuse of

discretion.4 See Renaissance Development Corp., 821 A.2d at 238. Ms. Volpe’s email, as Mr.

Sisto pointed out in his testimony, merely reflected her own opinion; it did not result from a vote

of the GIS Board. Moreover, the Superior Court decisions at issue were still pending on appeal

to this Court; so, the issue of whether or not unanimous approval of the other condominium

owners was required for expansion had not been definitively decided by this Court at the time of

Ms. Volpe’s email. Indeed, our opinion in Sisto, 68 A.3d at 603, was not issued until after the



4
        We note that the trial justice did not make a specific finding with respect to whether or
not there were exceptional circumstances in this case which warranted her failure to issue a
mandatory injunction requiring the removal of the expanded portion of Unit 18. She simply
stated her conclusion that she would not be issuing such an injunction. However, we “may
exercise [our] prerogative to affirm a determination of a trial justice on grounds different from
those enunciated in his or her decision.” Lerner v. Ursillo, 765 A.2d 1212, 1216 (R.I. 2001); see
also Ogden v. Rath, 755 A.2d 795, 798 (R.I. 2000) (per curiam).


                                               - 19 -
trial justice issued her decision in this case (but before a final judgment reflecting that decision

was entered). Accordingly, Mr. Sisto, and through him the Trust, had no completely certain

knowledge, at the time Unit 18 was being expanded, that they had to do any more than comply

with the terms of the GIS SAR as they purportedly understood them at that time. Contrary to

plaintiffs’ contention, it is our opinion that a balancing of equities is appropriate in this case and

that this case presents the kind of exceptional and virtually unique circumstances that can justify

deviation, in the exercise of sound discretion, from our general rule regarding the remedy for a

continuing trespass. See Rose Nulman Park Foundation ex rel. Nulman, 93 A.3d at 30; Santilli,

102 R.I. at 338, 230 A.2d at 863.

       In addition to the just-referenced facts, of great importance is the further fact that, when

the Trust purchased Unit 18, that Unit already had a foundation for expansion, which foundation

had been installed by the previous owners. Moreover, the Superior Court had specifically

ordered that those owners be permitted to proceed with their construction, and the GIS Board had

blessed the expansion by stating that no resident objected to it and that there were no issues as to

the expansion affecting the water views of any of the residences. In fact, Mr. Sisto testified that

the Trust’s expansion of Unit 18 was based on the plans commissioned by the previous owners;

in addition, the Trust’s expansion was smaller than the expansion intended by the previous

owners. Furthermore, other Harbor Houses units have been expanded in the past. It is therefore

understandable that the Trust, upon purchasing Unit 18, reasonably believed that it was able to

expand on the existing foundation that had been installed by the previous owners; it acted in

good faith.   Ordering the removal of the now-completed expansion of Unit 18 would be

enormously oppressive, both logistically and financially. By contrast, allowing the expansion to

remain in place is of little to no consequence to plaintiffs. The expansion is on land designated




                                                - 20 -
for the exclusive use of Unit 18, and there is no allegation that the expansion is affecting the

water views of any resident or is otherwise a material inconvenience for the other residents.

Additionally, plaintiffs had initially sought a preliminary injunction in this case to prevent the

expansion, but they failed to litigate vigorously in pursuit of such an injunction; rather, they

allowed their motion for a preliminary injunction to be advanced to a trial on the merits. The

result was that no decision was issued by the Superior Court until over a year after the complaint

was filed, during which time construction on the expansion of Unit 18 was ongoing.

       For all of the above-stated reasons, we are convinced that it would be oppressive and

inequitable to require the removal of the expanded portion of Unit 18 in the instant case. See

Santilli, 102 R.I. at 338, 230 A.2d at 863. Accordingly, it is our conclusion that the trial justice

did not abuse her discretion in issuing an injunction preventing any further expansion of Unit 18

while not issuing an injunction requiring the removal of the expanded portion of Unit 18.

                                                IV

                                           Conclusion

       In conclusion, on the plaintiffs’ appeal we hold that: (1) the trial justice did not abuse her

discretion in failing to issue a mandatory injunction requiring the removal of the expansion of

Unit 18; (2) the trial justice did not err in failing to rule on Count Three of the plaintiffs’

complaint; and (3) the trial justice did err in failing to award attorneys’ fees and costs to the

plaintiffs based on the terms of the GIS SAR. With regard to the Trust’s cross-appeal, it is our

holding that: (1) there was no error committed by the trial justice in determining that the Trust

breached the GIS SAR; and (2) the trial justice also did not err in determining that the Trust had

committed a trespass.




                                               - 21 -
       Accordingly, we affirm the judgment of the Superior Court in part, and we vacate that

judgment in part. We remand the record to that tribunal for proceedings consistent with this

opinion.



       Justice Flaherty, concurring. I concur completely with the well written and articulate

opinion of the majority in this case but take the liberty to focus on one issue in the appeal, the

decision of the trial justice to decline to award counsel fees.

       It is my opinion that a trial justice has no authority to disregard the clear and

unambiguous language used by the parties to an agreement and refuse to award counsel fees

when the parties themselves have assented that they will be awarded in the event of a breach. In

my view, this fits squarely with the American rule.5

       There is substantial law throughout the United States that supports this position. See,

e.g., McDowell Mountain Ranch Community Association, Inc. v. Simons, 165 P.3d 667, 670

(Ariz. Ct. App. 2007) (“the court lacks discretion to refuse to award fees under [a] contractual

provision”); Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla. 2005) (“Provisions in

ordinary contracts awarding attorney’s fees and costs to the prevailing party are generally

enforced. * * * Trial courts do not have the discretion to decline to enforce such provisions, even

if the challenging party brings a meritorious claim in good faith.”); Yim K. Cheung v. Wing Ki

Wu, 919 A.2d 619, 624-25 (Me. 2007) (“As a general rule, courts must enforce contract

provisions that require the payment of attorney fees, so long as they are reasonable.”); DiMarzio

5
  In his dissent, the Chief Justice reasons that Sophie F. Bronowiski Mulligan Irrevocable Trust
v. Bridges, 44 A.3d 116 (R.I. 2012), supports a conclusion that counsel fees are within the
discretion of the trial justice. I respectfully disagree; the reason for the remand in that case was
because “the clear language of the lease agreement provided contractual authorization for the
award of attorneys’ fees, and that the trial justice abused her discretion in failing to do so.” Id. at
122.


                                                - 22 -
v. Crazy Mountain Construction, Inc., 243 P.3d 718, 724 (Mont. 2010) (“While [the defendant]

is correct that the district court is bound by the contract between [the defendant] and [the

plaintiff] which entitles the prevailing party to attorney’s fees, * * * that does not mean [the

defendant] is entitled to all attorney’s fees. The reasonable amount of attorney’s fees awarded is

left to the discretion of the district court.”); Roy v. Mugford, 642 A.2d 688, 695-96 (Vt. 1994)

(“We have authorized the trial court to consider a wide range of factors in making this

determination * * * and accorded it ‘a large measure of discretion’ in determining

reasonableness. * * * We do not believe, however, the court’s discretion is broad enough to

allow it to deny any recovery of attorney’s fees when plaintiffs prevail. * * * Failure to award at

least some fees would deny [the] plaintiffs the benefit of the contract freely entered into by the

Mugfords.”).

        Because the parties have a right to the benefit of their bargain, I concur with the

majority’s opinion that the trial justice’s discretion did not permit her to decline to award counsel

fees in any amount.



        Chief Justice Suttell, concurring in part and dissenting in part, with whom Justice

Goldberg joins. I concur with the majority opinion in all respects except for its discussion of

attorneys’ fees and costs in subpart III, A.4.             Although I agree with the majority that a

contractual basis exists for such an award in this case, I do not believe it to be mandatory; rather

it is a matter that is reserved to the sound discretion of the trial justice.

        Clearly § 11.3 of the Goat Island South Condominium Second Amended and Restated

Declaration of Condominiums (GIS SAR) supplies the contractual predicate for an award of

attorneys’ fees. Except in those rare situations where the Legislature has provided that “the court




                                                  - 23 -
shall award * * * reasonable attorney[s’] fees,” see, e.g., Alves v. Hometown Newspapers, Inc.,

857 A.2d 743, 757 (R.I. 2004) (quoting G.L. 1956 § 9-33-2(d)), our jurisprudence has entrusted

the determination of whether to award attorneys’ fees in appropriate cases to the sound discretion

of a trial justice. Women’s Development Corp. v. City of Central Falls, 764 A.2d 151, 162 (R.I.

2001) (“Given 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.”). Our opinion in Sophie F.

Bronowski Mulligan Irrevocable Trust v. Bridges, 44 A.3d 116 (R.I. 2012), is illustrative. In that

case, we held that the trial justice abused her discretion by failing to award attorneys’ fees where

the clear language of a lease agreement provided that the tenant would pay reasonable attorneys’

fees and costs should a court render a judgment in the landlord’s favor in a legal action to

recover for damages to the property. Id. at 122. We remanded the case to the Superior Court in

part for a hearing on the issue of the attorneys’ fees incurred by the landlord in its effort to

recover damages from the tenant for the repairs required to the property. Id. Nevertheless, we

maintained our adherence “to the ‘American rule’ that litigants are generally responsible for their

own attorneys’ fees and costs,” but that “attorneys’ fees may be appropriately awarded, at the

discretion of the trial justice, given proper contractual or statutory authorization.” Id. (quoting

Napier v. Epoch Corp., 971 A.2d 594, 598 n.4 (R.I. 2009) (emphasis added)). This Court has

recently reaffirmed that our review of a trial justice’s decision regarding attorneys’ fees has two

distinct prongs: “If it is determined that there is an adequate legal basis for such an award [which

requires a de novo determination], then we review a trial justice’s decision awarding or denying

attorneys’ fees for an abuse of discretion.” Danforth v. More, 129 A.3d 63, 72 (R.I. 2016). In my

opinion, our case law dictates that, when a contractual basis for the award of attorneys’ fees




                                               - 24 -
exists, the question of whether or not to award any amount of attorneys’ fees in light of the facts

and circumstances of an individual case remains squarely within the discretion of a trial justice.

         The case under review illuminates the wisdom of this policy. All the reasons articulated

by the trial justice to support her decision to deny plaintiffs’ requested relief that defendants be

ordered “to remove any and all construction that extends Unit No. 18 beyond its pre-expansion

footprint” also support her decision to deny plaintiffs an award of attorneys’ fees and court costs.

The trial justice referenced the testimony of Bennie Sisto, “an additional trustee” of defendant

Constellation Trust, who acknowledged that he had expanded the unit by constructing walls on

an existing foundation. At the time, the GIS SAR provided that alterations to any building of the

Harbor Houses Condominium Association, Inc. (Harbor Houses) required the prior approval of

only the Harbor Houses executive board, not all 154 unit owners of Goat Island South. GIS SAR

§ 2.3(a)(i). Moreover, the Harbor Houses declaration in effect at the time permitted “a unit

owner to expand the footprint of his or her unit onto his or her yard, so long as that expansion

[did] not encroach onto the yard of the neighboring unit.” Sisto v. America Condominium

Association, Inc., 68 A.3d 603, 612-13 (R.I. 2013).6 The trial justice referred to Mr. Sisto’s

“sincerely held beliefs of good faith compliance with the Condominium Act and the [GIS

SAR].”

         In addition, the trial justice found that defendant’s expansion project had been endorsed

by Harbor Houses, and that it did not result in any view obstruction for any other unit owner at

Goat Island South. Further, she noted that nine other units at Harbor Houses had been expanded



6
  It was not until June 26, 2013, nearly one year after the trial justice’s decision, that this Court
issued its opinion declaring that G.L. 1956 § 34-36.1-2.17(d) required the unanimous approval of
all unit owners of Goat Island South for the expansion of defendant’s unit, not just the Harbor
Houses executive board. Sisto v. America Condominium Association, Inc., 68 A.3d 603, 614
(R.I. 2013).


                                               - 25 -
without objection. As the majority points out, it is “understandable that the [Constellation]

Trust, upon purchasing Unit 18, reasonably believed that it was able to expand on the existing

foundation that had been installed by the previous owners; it acted in good faith.”

       Under the “exceptional and virtually unique circumstances” of this case, I believe that the

trial justice’s decision to deny attorneys’ fees is fully sustainable. I acknowledge that the trial

justice did not specify whether she denied an award because she did not believe it was warranted

or because she did not believe that she had the authority to make an award. In her decision she

said that the court “declines to award the [p]laintiff’s court costs and attorney[s’] fees.” Her use

of the verb “declines” certainly suggests that she recognized that there was a basis for awarding

fees and costs, but that she was nevertheless refusing to award them.

       In any event, this case will now be remanded for a determination of attorneys’ fees and

costs. The majority leaves unanswered, however, the question of whether the trial justice must

award the plaintiffs the full amount of their reasonable attorneys’ fees and costs or whether a

lesser amount might suffice. Because I believe that any award of attorneys’ fees and costs in this

case is properly entrusted to the sound discretion of the trial justice, I respectfully dissent from

that portion of the majority opinion.



       Justice Goldberg, concurring in part and dissenting in part. I respectfully dissent

from that portion of the majority’s decision that reverses the denial of the plaintiffs’ request for

an award of attorneys’ fees. I begin by noting the fact that there are now four justices writing on

this one case, which in itself is a statement about the merits of this case. Although I join the

Chief Justice’s well-written opinion, in which he concurs in part and dissents in part, I

nonetheless write separately. First, I agree with the Chief Justice that the discretion to award




                                               - 26 -
attorneys’ fees should remain with our experienced and well-respected trial justices. Second, in

the absence of briefing and argument, I am not convinced that parties to a contract may saddle

the Superior Court with mandatory jurisdiction dictating the award of attorneys’ fees. Cf. Sidell

v. Sidell, 18 A.3d 499, 508 (R.I. 2011) (holding that parties cannot confer subject matter

jurisdiction on a court when jurisdiction is otherwise lacking). Furthermore and critically,

G.L. 1956 § 9-1-45 provides for an award of attorneys’ fees in contract actions7 and thus can be

read as in derogation of the common law American rule. Under our jurisprudence, the award of

attorneys’ fees in contract actions rests within the discretion of the trial justice, and, in passing on

a request for an award of attorneys’ fees, this Court has heretofore deferred to that discretion.

          Next, I note that this Court has ignored its own observation about the “exceptional and

virtually unique circumstances” of this case and contradicted its own rationale for affirming

other aspects of the trial justice’s decision. Section 11.3 of the Goat Island South Condominium

Second Amended and Restated Declaration of Condominium (GIS SAR)—the governing

document for this toxic, litigious community that by now has become an all-too-familiar

appellation in the courts—provides, in relevant part, that:

                            “Violation of any of the terms of the [GIS SAR] * * * shall
                    be grounds for relief which will include, but not be limited to, any
                    actions for * * * injunctive relief * * *. Any such violator shall be
                    liable for all court costs and attorney[s’] fees incurred in enforcing



7
    General Laws 1956 § 9-1-45 provides, in its entirety:

                  “The court may award a reasonable attorney[s’] fee to the prevailing party
          in any civil action arising from a breach of contract in which the court:

                  “(1) Finds that there was a complete absence of a justiciable issue of
          either law or fact raised by the losing party; or

                    “(2) Renders a default judgment against the losing party.” (Emphases
          added.)


                                                    - 27 -
               the rights pursuant to the preceding sentence * * *.” (Emphasis
               added.)

Of critical importance, defendant commenced construction of the challenged addition at a time

when the law was not yet settled as to whether the approval from the owners of all 154 units was

required—or, in other words, whether proceeding in the absence of such approval constituted a

violation of the GIS SAR.        Indeed, this Court issued its opinion in Sisto v. America

Condominium Association, Inc., 68 A.3d 603, 617 (R.I. 2013) (Sisto I), in June 2013, more than

two years after construction of the extension to Unit 18 commenced.

       Moreover, before that opinion was issued, several guideposts suggesting that defendant

was acting in conformity with the GIS SAR were in place. As the majority readily notes, the

expansion of Unit 18’s original footprint was sanctioned by a Superior Court consent order, to

which defendant’s predecessors-in-interest were parties. With respect to the 2011 expansion, the

Goat Island South Executive Board issued an advisory opinion one month before construction

began assuring that the plans submitted by defendant’s predecessors-in-interest were in

accordance with § 2.3 of the GIS SAR. Uncontroverted testimony from Bennie Sisto indicated

that defendant’s expansion of Unit 18 was based on the approved plans and that the actual

extension was slightly smaller than that initially intended by defendant’s predecessors-in-

interest. Significantly, nine other units in Harbor Houses Condominium had been permitted to

expand in the same manner without objection from America Condominium Association.

Further, plaintiffs allowed their request for preliminary injunctive relief to proceed to a drawn-

out trial while construction on Unit 18 remained ongoing.

       These factors are of vital significance because, at the time of the construction, the parties

did not have the benefit of this Court’s interpretation of G.L. 1956 § 34-36.1-2.17(d), as set forth

in Sisto I, 68 A.3d at 614. While the construction began in 2011, the basis of the determination



                                               - 28 -
that defendant had violated the GIS SAR by not obtaining unanimous approval from the owners

of the other 153 units did not ripen until 2013. Requiring the payment of attorneys’ fees under

such circumstances leads to a patently unjust result.

        The majority cites many of the above-referenced factors to support its conclusion that the

trial justice did not abuse her discretion in declining to issue an injunction requiring the removal

of the expanded section of Unit 18. I respectfully submit that overruling this seasoned and

experienced trial justice on the issue of attorneys’ fees on the one hand and affirming her

decision to deny injunctive relief on the other gives rise to an inconsistent and perplexing

outcome that is neither required nor warranted.

        For the foregoing reasons, I respectfully dissent from the majority’s decision reversing

the trial justice’s denial of the plaintiffs’ request for an award of attorneys’ fees and concur as to

all other issues.




                                                - 29 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        America Condominium Association, Inc. et al. v. Stefania M.
                      Mardo, as Trustee of the Constellation Trust – 2011 et al.

CASE NO:              No. 2014-184-Appeal.
                      No. 2014-185-Appeal.
                      No. 2014-186-Appeal.
                      (NC 11-234)

COURT:                Supreme Court

DATE OPINION FILED: June 28, 2016

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

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Melanie Wilk Thunberg

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Robert C. Shindell, Esq.
                                      C. Alexander Chiulli, Esq.

                      For Defendants: John A. Tarantino, Esq.
                                      Edmund A. Allcock, Esq.
                                      Nicole J. Benjamin, Esq.
                                      Joseph Avanzato, Esq.
                                      Robert D. Wieck, Esq.
