Charles A. Anton v. Philippe L. Houze

July 1, 2022

July 1, 2022

Supreme Court

No. 2020-234-Appeal.
No. 2020-247-Appeal.
(NC 17-493)

Charles A. Anton et al. :

v. :

Philippe L. Houze 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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2020-234-Appeal.
No. 2020-247-Appeal.
(NC 17-493)

Charles A. Anton et al. :

v. :

Philippe L. Houze et al. :

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

OPINION

Justice Long, for the Court. This case came before the Supreme Court on

cross-appeals from a final judgment of the Superior Court that granted declaratory

and injunctive relief in favor of the plaintiffs, Charles A. Anton and Tami D. Anton,

as Trustees of the Victoria Avenue Realty Trust (plaintiffs or the Antons), and denied

declaratory and injunctive relief requested in the counterclaim filed by the

defendants, Philippe L. Houze and Marie Houze (defendants or the Houzes). In their

appeal, the defendants contend that the trial justice erred in (1) deciding that a two-

member condominium board consisting of the owners of the condominium’s two

units is not inconsistent with the Rhode Island Condominium Act, G.L. 1956 chapter

36.1 of title 34 (the act); (2) holding Mr. Houze in civil contempt; and (3) awarding

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the plaintiffs attorneys’ fees. In their cross-appeal, the plaintiffs assert that the trial

justice erred when he decided that § 34-36.1-2.17(b) did not bar the defendants’

counterclaims as untimely.

For the reasons stated herein, we affirm the judgment of the Superior Court.

Facts and Procedural History

The acrimony between plaintiffs and defendants centers on the governance of

two condominium units located at 9 and 9A Victoria Avenue in Newport, Rhode

Island. The facts concerning the events that led to litigation are undisputed.

In 1990 Richard D. Stengel, DMD and JoAnn R. Stengel (the Stengels) built

an addition to their single-family home located on Victoria Avenue in Newport for

Dr. Stengel’s father, Charles D. Stengel (Mr. Stengel). The Stengels, as declarants,

then converted the Victoria Avenue property into a two-unit condominium, D & J

Condominium (the condominium), managed by D & J Condominium Association

(the association). The Stengels designated the addition as Unit 9A and conveyed it

to Mr. Stengel, and they continued to live in Unit 9. Units 9 and 9A share one

adjoining wall but are otherwise separate units.

As part of the conversion of the property to a condominium, the Stengels’

attorney drafted the D & J Declaration of Condominium, dated August 10, 1990 (the

declaration), and By-Laws of the D & J Condominium (the by-laws).

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Pertinent to this dispute, the declaration and the by-laws specified the

following. Unit 9 and Unit 9A had 67 percent and 33 percent, respectively, of the

allocated interest in the condominium common elements, expenses, and profits. A

board of directors (the board) consisted of two people who would be elected

according to the by-laws. Unit owners would elect the board according to their

allocated interests. Importantly, once the board was established, the by-laws

provided, “[n]o Unit Owner shall make any structural addition, alteration, or

improvement in or to his Unit, or the Common Elements, without the prior written

consent thereto of the Board of Directors.”

The declaration also required 67 percent of unit-owner consent to amend the

declaration; however, any amendment contrary to the act was prohibited. The

declaration further provided that all disputes regarding the operation of the

condominium that could not be resolved by agreement of the unit owners would be

submitted to arbitration. Any unit owner or person who violated the declaration or

by-laws would be liable for all court costs and reasonable attorneys’ fees incurred

by the association, the board, the managing agent, and other unit owner, according

to the declaration.

After living in Unit 9A for several years, Mr. Stengel transferred ownership

of Unit 9A back to the Stengels. In 2005 the Stengels rented Unit 9A to the Antons,

who soon thereafter expressed an interest in purchasing Unit 9A. However, before

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purchasing Unit 9A, the Antons discussed with the Stengels their concerns regarding

governance of the condominium. The Antons wanted to ensure that, if they became

owners of Unit 9A, they would have the same decision-making authority as Mrs.

Stengel, who was at that time the sole owner of Unit 9, and any future owners of

Unit 9. The Stengels and the Antons came to an agreement: As a condition of the

Antons’ purchase of Unit 9A, the Stengels would amend the declaration to give the

Antons, as owners of Unit 9A, authority in managing the condominium equal to that

of the owner of Unit 9.

On March 24, 2006, the Stengels, who at that time comprised 100 percent of

the votes of the association, the board, and unit owners, executed the First

Amendment to D & J Condominium Declaration of Condominium (the first

amendment) and recorded it four days later in the City of Newport Land Evidence

Records. The Antons then completed their purchase of Unit 9A. The first

amendment revised multiple sections of the declaration, including the definition of

“Board of Directors” and provisions relating to the rights of unit owners concerning

various condominium governance matters.

More specifically, the first amendment modified the language of the definition

of “Board of Directors” in Section 1.5 of the declaration to provide as follows:

“‘Board of Directors’ means those persons who are the
owners of Units 9 and 9A and who shall also be the
Executive Board of the Association. Notwithstanding any
other provision in this Declaration, Rules and Regulations
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and the By-Laws to the contrary (including without
limitation Section 3.2 of the By-Laws), the Board of
Directors and Executive Board of the Association shall at
all times be comprised of those persons who are the
owners of Units 9 and 9A[.]”

The first amendment also revised the language of the provision requiring

consent from unit owners to alter various aspects of the condominium. The relevant

portion of the modified Section 8.1 of the declaration states:

“In addition to all other requirements of this Declaration
or the By-Laws, the prior written consent of First
Mortgagees holding mortgages on Units entitled to at least
fifty-one (51%) percent of the Common Areas and
Facilities, and Unit Owners entitled to one hundred
(100%) percent of the Common Areas and Facilities of the
Condominium shall be required for the following:

“* * *

“* * * any additions, alterations, or improvements to the
Common Elements costing in excess of One Thousand
($1,000.00) Dollars.”

It is the Antons’ contention that these revisions designated that the two-

member board comprises one person from each unit, each with equal voting rights,

and that many condominium governance and approval issues require 100 percent of

the board’s consent.

Ultimately, the Stengels listed Unit 9 for sale, and in December 2016 the

Stengels and the Houzes entered into a purchase and sale agreement for Unit 9; the

parties closed on the sale in May 2017.

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Prior to the closing, on December 30, 2016, the Antons had contacted the

Stengels’ broker to verify that the Houzes, as potential buyers of Unit 9, were

familiar with the various condominium documents and understood that unanimous

unit-owner approval was required to alter aspects of the common elements and the

exterior of any unit of the condominium. Thereafter, but also prior to the closing,

the Antons met with the Houzes in February 2017 to discuss the Houzes’ plans to

renovate the interior and exterior of Unit 9. During that meeting, Mr. Anton

explained to the Houzes that the renovations would require the Antons’ approval

because the Houzes wanted to modify structural elements, the exterior, and common

elements of the condominium. Further, Mr. Anton instructed his attorney to contact

Mr. Houze’s attorney to bring this issue to Mr. Houze’s attention.

After the closing, Mr. Anton again directed his attorney to send the Houzes’

attorney a letter regarding the management of the condominium. Mrs. Anton also

personally reached out to Mr. Houze regarding his planned renovation. Throughout

these communications and the pendency of this litigation, Mr. Houze maintained

that he had unilateral decision-making power because, he later testified, based on his

“line by line” reading of the declaration and the by-laws, he believed that he had a

majority of the board votes accorded by his 67 percent of the allocated interest.

Thereafter, Mr. Houze began interior renovations to Unit 9. To do so, he

received a permit from the City of Newport by representing that he was renovating

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a single-family home. However, the building inspector required Mr. Houze to

receive consent from the board for modifications to the external elements. Mr.

Houze then presented the Antons with a list of renovations for approval, which the

Antons refused to authorize without first viewing blueprint plans of the proposed

modifications. Despite the Antons’ failure to provide the requested approval, Mr.

Houze implied in his communications with a clerk of the office of the city building

inspector that he had consent for the renovations as the majority vote of the board.

Consequently, Mr. Houze received permitting for the construction. The building

inspector later voided the permit, however, explaining that the clerk had issued it

after receiving misleading information. As a result of Mr. Houze’s actions, the

Antons initiated the instant action in Newport County Superior Court.

The Antons alleged in their verified complaint that the Houzes had

commenced construction without unanimous approval by the board, in violation of

the condominium’s governing documents; towed a vehicle belonging to the Antons’

guest that was mistakenly parked on the Houzes’ driveway; applied tape to the

Antons’ window to obstruct the view of a security camera inside the Antons’ unit;

and erected a nine-foot-high “spite fence” in front of the Antons’ window, which the

Houzes refused to move. The Antons sought declaratory relief as to the rights and

responsibilities of the parties as set forth in the condominium’s governing

documents; the member composition of the board and voting rights; the definition

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of “unit” according to the declaration and by-laws; whether unit owners must receive

board approval before modifying the external elements, common elements, and

structural elements of a unit; and whether the Houzes’ renovations violated the

declaration. The Antons also sought injunctions to require the Houzes to remove the

“spite fence” and to prohibit the Houzes’ unilateral modification of the external and

structural elements of Unit 9 and the common elements of the condominium. Lastly,

the Antons asked the court to award compensatory and punitive damages, as well as

attorneys’ fees and costs, for the Houzes’ violation of the condominium’s governing

documents.

The Houzes counterclaimed, alleging that the Antons’ interpretation of the

term “Board of Directors” contravened the plain language of the act and further that

the first amendment violated the act. The Houzes sought declaratory relief regarding

the validity of the first amendment; the composition of the board and its voting

allotment; and the definition of “unit” as used in the condominium’s governing

documents. The Houzes also requested an award of attorneys’ fees and costs, as

well as compensatory and punitive damages, and an injunction prohibiting the

Antons from surveilling the Houzes and their unit by video recording.

In December 2017 the trial justice granted the Antons’ request for a temporary

restraining order (the TRO), which he renewed until such time that the court

rendered a decision on the merits of the case. The TRO prohibited the Houzes from

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changing the external elements of Unit 9 or the common elements of the

condominium; it also enjoined the Houzes from making unilateral decisions

regarding landscaping and the common elements without written approval from the

board or approval of 100 percent of the unit owners.

The trial justice presided over a four-day nonjury trial in October 2018.

During the trial, the Antons and the Houzes each presented testimony by an attorney

qualified as an expert to give an opinion on the declaration, its interpretation, and

the applicability of relevant law. Attorney Frank Lombardi testified for the Houzes.

One month prior to the start of trial, but after the issuance of the TRO, the

Houzes had contacted the Antons requesting their consent to remove a beech tree

branch that was at risk of falling onto Unit 9. After much communication, the

Antons agreed to the removal of only that branch.

However, after completion of the landscaping work, in December 2018, the

Antons discovered that a row of holly bushes and a crabapple tree had also been

removed from the property. The Antons therefore filed a motion to adjudge Mr.

Houze in civil contempt of the TRO for the removal of the greenery without the

Antons’ consent.

At the contempt hearing, held in February 2019, Mrs. Anton testified that she

noticed the removal of the holly bushes and crabapple tree when she visited the

property a few weeks after their removal. Mrs. Anton testified that she had approved

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the hiring of Bartlett Tree Experts (Bartlett) for the removal of the branch because

Bartlett had previously performed work on the property. However, an e-mail from

Bartlett to Mrs. Anton and Mr. Houze indicated that Bartlett would require payment

in advance for any services, due to the ongoing dispute between the two parties.

Mr. Houze also testified at the contempt hearing about his actions with respect

to the removal of the greenery on the property. Mr. Houze explained that, in addition

to the estimate from Bartlett, he had received two separate estimates from North-

Eastern Tree Service, Inc. (North-Eastern): the first for removal of the beech tree

branch only, and the second for maintenance of cypress trees and the removal of the

holly bushes and the crabapple tree. Mr. Houze stated that, despite the discussion

with the Antons wherein they approved the removal of the beech tree branch by

Bartlett, he chose to work with North-Eastern because Bartlett had requested

payment in advance.

Mr. Houze recounted that he was present on the property when North-Eastern

began the landscaping work, but that he left prior to its completion due to a work

commitment in Boston. Mr. Houze testified that he returned the next day and was

surprised to find that North-Eastern had removed the holly bushes and crabapple

tree, in addition to the beech tree branch. According to Mr. Houze, the removal of

the additional foliage was North-Eastern’s mistake; he testified that the company

erroneously thought he had authorized the landscaping work according to both

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estimates, not just the first, for the beech tree branch only. Mr. Houze acknowledged

in his testimony at the hearing that he had not notified the Antons of the mistake.

In an oral ruling on the contempt motion on October 3, 2019, the trial justice

held Mr. Houze in civil contempt and awarded the Antons attorneys’ fees related to

the contempt matter. The trial justice found that the Antons had proven by clear and

convincing evidence that Mr. Houze intentionally failed to comply with the TRO.

He found that Barlett’s request for payment in advance was to ensure that the parties

had reached an agreement before work started, whereas there was no evidence that

North-Eastern was aware of the parties’ contentious relationship. The trial justice

further found that Mr. Houze’s actions in removing the holly bushes and crabapple

tree were consistent with the very belief held by Mr. Houze that had sparked the

parties’ dispute. According to the trial justice, Mr. Houze believed that he could

unilaterally authorize modifications to the common elements of the condominium.

The trial justice also found that Mr. Houze’s testimony that North-Eastern removed

the additional foliage by mistake was not credible, because Mr. Houze took no

corrective action after the removal, and he did not notify plaintiffs of the purported

mistake.

That same day, the trial justice also issued an exhaustive and lengthy written

decision on the merits of the case, granting the Antons’ requests for declaratory and

injunctive relief. The trial justice determined that the statute of limitations did not

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bar consideration of the Houzes’ counterclaims, but nevertheless concluded that the

challenged first amendment was not inconsistent with the act. Accordingly, he found

that Mr. Houze was required, but failed, to get approval from the Antons for the

renovations to the external and structural elements of Unit 9 and the modifications

to common elements.

The trial justice awarded reasonable attorneys’ fees and costs to the Antons,

pursuant to both § 34-36.1-4.17 and the attorneys’ fees provision of the declaration.

He found Mr. Houze’s behavior throughout the pendency of the ligation to be

“unreasonabl[e] with respect to his obligations to the Condominium and to the

Antons as fellow Unit Owners” by attempting to unilaterally control the

condominium on numerous occasions; he also found that “Mr. Houze’s actions were

deliberately combative and confrontational” prior to the Houzes’ purchase of Unit 9,

and that those actions continued after trial.

In his decision, the trial justice gave numerous examples of Mr. Houze’s

conduct, such as the construction of a “spite fence” in front of Unit 9A; his refusal

to provide the Antons with plans of his proposed renovations; the manner in which

he presented his application for a permit to the clerk of the city building inspector;

and his defiance of the TRO by causing the removal of the holly bushes and

crabapple tree. After an accounting of attorneys’ fees, the trial justice ultimately

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ordered the Houzes to pay $230,121.15 in fees to the Antons, as explained in a

written decision issued on March 27, 2020.

Judgment entered on April 20, 2020, granting plaintiffs’ requested relief and

denying defendants’ requested relief, consistent with the trial justice’s written

decisions and subsequent order encapsulating those decisions. The Houzes timely

appealed, and the Antons filed a timely cross-appeal.

Issues Presented

Before this Court, the Houzes contend that the trial justice erred in deciding

that the first amendment’s designation of the unit owners as the two members of the

condominium board does not contravene the act. Further, according to the Houzes,

the trial justice (1) erroneously limited Attorney Lombardi’s testimony on that issue

and (2) wrongly required the Houzes to seek consent from the Antons for renovations

to Unit 9. The Houzes also contend that the trial justice erred in holding Mr. Houze

in contempt and awarding the Antons attorneys’ fees.

In their cross-appeal, the Antons assert that the trial justice erred in concluding

that the Houzes’ challenge to the validity of the first amendment to the declaration

was not time-barred pursuant to § 34-36.1-2.17(b). Because of the potentially

dispositive nature of the statute-of-limitations issue raised in the Antons’ cross-

appeal, we first consider whether the Houzes’ request for declaratory relief, as stated

in their counterclaim filed on March 22, 2018, was untimely.

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Statute of Limitations

Although we review a trial justice’s decision to grant or deny declaratory relief

with deference, we apply a de novo standard of review to the trial justice’s

conclusions on questions of law. E.g., Tiernan v. Magaziner, 270 A.3d 25, 30 (R.I.

2022). It is settled that “whether a statute of limitations has run against a [party’s]

claim is * * * a question of law.” Balletta v. McHale, 823 A.2d 292, 294 (R.I. 2003)

(quoting Hall v. Insurance Company of North America, 727 A.2d 667, 669-70 (R.I.

1999)). Additionally, our review of questions of statutory interpretation is de novo.

E.g., Goddard v. APG Security-RI, LLC, 134 A.3d 173, 175 (R.I. 2016).

Section 34-36.1-2.17(b) provides that “[n]o action to challenge the validity of

an amendment adopted by the association pursuant to this section may be brought

more than one year after the amendment is recorded.” Neither party in this case has

challenged the meaning of § 34-36.1-2.17(b). Thus, we apply the statute as written

to the facts of this case.

The Stengels undisputedly adopted the first amendment in March 2006 in

compliance with the two applicable requirements of § 34-36.1-2.17: First, 100

percent of the unit owners agreed to the amendment, more than the 67 percent

mandated by both § 34-36.1-2.17(a) and the declaration; and second, the first

amendment was recorded in Newport, the municipality in which the condominium

is located, as prescribed by § 34-36.1-2.17(c). Accordingly, § 34-36.1-2.17(b)

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authorized a challenge to the validity of the first amendment until March 28, 2007,

one year after the first amendment was recorded in the land evidence records. The

Houzes’ challenge to the first amendment, more than ten years later, is plainly

untimely under the act.

Nevertheless, the Houzes argue that the first amendment is void ab initio and

therefore not subject to the limitations period set forth in § 34-36.1-2.17(b), because,

they assert, the first amendment conflicts with § 34-36.1-3.03(f), and such a conflict

is prohibited by the act and by the declaration. Specifically, the Houzes allege that

the first amendment’s designation of the board as being composed of one unit owner

from each unit violates the requirement in § 34-36.1-3.03(f) that a three-member

board be elected. They analogize the facts of the present case to those in America

Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117 (R.I. 2004), contending

that the first amendment reduced the Houzes’ voting rights, in contravention of the

“consumer protection aspect” of the act as set forth in that case. See IDC, Inc., 844

A.2d at 130.

In IDC, Inc., the defendant-developer contested the trial justice’s

determination that certain amendments to the condominium declaration in that case,

which increased special declarant rights, were invalid because they were not

unanimously approved by all unit owners as required by § 34-36.1-2.17(d). IDC,

Inc., 844 A.2d at 125, 128-29. The defendant-developer contended that all unit

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owners had unanimously consented because representatives of the individual unit

owners had voted in favor of the amendments. Id. at 128. We disagreed, holding

that the voting scheme used to increase special declarant rights was inconsistent with

the act. Id. at 130. We recognized the “strong consumer protection aspect” of

§ 34-36.1-2.17(d), explaining that the unanimity requirement protects unit owners

from “amendments favoring the declarant made without their consent.” Id. We

concluded that the amendments were therefore void ab initio; consequently, we

deemed the statute of limitations inapplicable. Id. at 133.

Despite the Houzes’ urging, IDC, Inc. does not control our analysis of the

timeliness of the Houzes’ challenge to the validity of the first amendment. We

discern no offense to law or public policy that would render the first amendment

void ab initio. The Houzes receive no comfort from the “consumer protection

aspect” of the act with respect to § 34-36.1-3.03(f), which applies to the period of

declarant control, if any, of a condominium association. See § 34-36.1-3.03(d). In

March 2006, when the first amendment was adopted, the Houzes were not unit

owners and, consequently, had no rights related to the condominium. See IDC, Inc.,

844 A.2d at 130. Any rights relating to the condominium that the Houzes have date

to May 2017, when they closed on the purchase of Unit 9, and which was well

beyond the period of the Stengels’ initial control of the association as declarants.

After the closing in 2017, the Houzes became subject to the condominium’s

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governing documents as written at that time. As evidenced by the statute of

limitations at issue, we discern no legislative intent to protect subsequent purchasers

of a condominium unit in the Houzes’ position. See id. Accordingly, the Stengels’

adoption of the first amendment in March 2006 was not contrary to the “strong

consumer protection” policy of the act. See id.

Moreover, the first amendment was not otherwise void ab initio. See Bilanko

v. Barclay Court Owners Association, 375 P.3d 591, 595 (Wash. 2016) (analyzing

an identical statute-of-limitations provision based on the Uniform Condominium Act

and concluding that an amendment to a condominium declaration was not void ab

initio because nothing suggested that the condominium owners association

“committed fraud, seriously offended public policy, or exceeded its legal authority

in passing the amendment”). Nothing in the record indicates that the Stengels

committed fraud, seriously offended public policy, or exceeded their legal authority

in adopting and recording the first amendment.

Because the first amendment is not void ab initio, any claims regarding its

validity are subject to the statute of limitations contained in § 34-36.1-2.17(b). As

discussed previously, the Houzes’ counterclaims, brought more than ten years after

the recording of the first amendment, are therefore time-barred. Accordingly, we

will not address the merits of the Houzes’ challenge to the validity of the first

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amendment, nor will we address the Houzes’ evidentiary argument relating to the

testimony by their expert witness, Attorney Lombardi; the issue is moot.

We therefore affirm that portion of the Superior Court judgment denying

defendants’ counterclaims, albeit for reasons that differ from those articulated by the

trial justice. See Miller v. Metropolitan Property and Casualty Insurance Co., 111

A.3d 332, 339 (R.I. 2015) (stating that this Court may affirm a judgment on different

grounds than those in the trial justice’s decision).

Civil Contempt

“There can be no question that courts have inherent power to enforce

compliance with their lawful orders through civil contempt.” Shillitani v. United

States, 384 U.S. 364, 370 (1966). This Court affords “great deference to a trial

justice’s finding of contempt.” Town of Coventry v. Baird Properties, LLC, 13 A.3d

614, 621 (R.I. 2011). We will not disturb the trial justice’s findings of fact in a

contempt proceeding unless the findings are clearly wrong or the trial justice abused

his or her discretion. E.g., Harris v. Evans, 250 A.3d 553, 560 (R.I. 2021). We give

great deference to the trial justice’s determinations of credibility, id., because it was

the trial justice who had the opportunity to observe the witnesses’ live testimony and

the witnesses’ demeanor. State v. Segrain, 243 A.3d 1055, 1062 (R.I. 2021).

Accordingly, if the record supports the trial justice’s findings, we will not replace

the trial justice’s weighing of the evidence with our own. See, e.g., Now Courier,

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LLC v. Better Carrier Corp., 965 A.2d 429, 434-35 (R.I. 2009); Gardiner v.

Gardiner, 821 A.2d 229, 232 (R.I. 2003).

A party establishes civil contempt by producing clear and convincing

evidence that the alleged contemnor did not substantially comply with a court order

“sufficiently specific in its directive to the parties[.]” Now Courier, LLC, 965 A.2d

at 434. Whether a party substantially complied with a court order depends on the

circumstances of the case, such as the nature of the interest and the degree that

noncompliance affected that interest. E.g., Durfee v. Ocean State Steel, Inc., 636

A.2d 698, 704 (R.I. 1994); see Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir.

1991) (explaining that, to be held in contempt, the contemnor “must have violated a

clear and unambiguous order that left no reasonable doubt as to what behavior was

expected and who was expected to behave in the indicated fashion”).

The defendants maintain that the trial justice erred when he found Mr. Houze

in civil contempt because, according to defendants, there was insufficient evidence

to support the finding of contempt and Mr. Houze had substantially complied with

the TRO.

A review of the record of this case reveals that the trial justice’s contempt

finding is supported by clear and convincing evidence. The TRO prohibited the

Houzes from “making unilateral decisions regarding the maintenance of the

landscaping * * * without written approval from the Board of Directors and/or the

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approval of 100% of the Unit Owners.” Mr. Houze’s actions leading up to the

removal of the additional greenery demonstrate his intent to remove the holly bushes

and crabapple tree without the Antons’ consent, in direct defiance of the TRO.

As the trial justice found, Mr. Houze proposed the removal of the beech tree

branch and the parties agreed to trim only that one specific branch. Yet, Mr. Houze

took it upon himself to obtain an estimate from North-Eastern for additional work,

including the removal of the crabapple tree and holly bushes, despite knowing that

the Antons had not approved those modifications. Mr. Houze then chose to work

with North-Eastern, which had no knowledge of the dispute between the parties, as

opposed to Bartlett, which had required payment-in-advance because the company

was fully aware of the disagreement between the Houzes and the Antons and wanted

confirmation that both parties gave permission before any work on the condominium

property commenced.

Additionally, the trial justice found that North-Eastern did not mistakenly cut

the holly bushes and the crabapple tree; rather, he fully discredited Mr. Houze’s

testimony on the matter and inferred—based both on the fact that Mr. Houze had

circumvented the approved servicer and on his failure to notify the Antons of the

mistake—that he had intentionally caused the unauthorized removal of the additional

greenery. The trial justice found that Mr. Houze’s actions exemplified his belief that

he had unilateral authority over the condominium. Giving proper deference to the

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trial justice’s factfinding, Harris, 250 A.3d at 560, we perceive no error with the trial

justice’s finding that Mr. Houze committed civil contempt by doing exactly what he

was enjoined from doing: He unilaterally caused a modification to the landscaping,

a common element of the condominium.

The defendants argue that Mr. Houze did not commit civil contempt because

his only unilateral decision, in violation of the TRO, was choosing a landscaping

company to which the Antons had not consented. They contend that because it was

North-Eastern’s mistake that caused the removal of the holly bushes and crabapple

tree, Mr. Houze, through his own actions, had substantially complied with the TRO.

However, this contention is meritless; we defer to the trial justice’s credibility

determination, Harris, 250 A.3d at 560, and here the trial justice did not find Mr.

Houze’s testimony to be credible. The trial justice instead found, as set out herein,

that Mr. Houze intentionally caused the unauthorized greenery removal prohibited

by the TRO—it was not merely a mistake—and, as we have determined, the trial

justice’s finding is amply supported by the record.

Thus, we conclude that the trial justice did not abuse his discretion in finding

Mr. Houze in civil contempt of the TRO.

Attorneys’ Fees

On appeal, defendants do not challenge the statutory and contractual basis for

the trial justice’s award of attorneys’ fees; rather, they assert that the trial justice

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erred in awarding fees because (1) defendants raised a justiciable question in their

counterclaim; (2) the trial justice erred in deciding in favor of plaintiffs on the merits

of the case; and (3) plaintiffs should have availed themselves of arbitration, as

required by the declaration.

“When attorneys’ fees are appropriately awarded pursuant to statutory or

contractual authority, we look to whether that award is both fair and reasonable

based on the facts and circumstances of each particular case.” America

Condominium Association, Inc. v. Mardo, 270 A.3d 612, 620 (R.I. 2022). “[T]his

Court will uphold a presiding judicial officer’s award of attorneys’ fees unless such

award constitutes an abuse of discretion.” Mullowney v. Masopust, 943 A.2d 1029,

1032 (R.I. 2008).

After review of the voluminous record transmitted to this Court on appeal and

the comprehensive decisions issued by the trial justice, we cannot conclude that the

trial justice abused his discretion in awarding fees in this case. Section 34-36.1-4.17

clearly authorizes the award of fees “in an appropriate case,” and the declaration

itself provides that unit owners who violate the terms of the declaration “shall be

liable for all court costs and reasonable attorneys’ fees incurred by * * * any Owner

relating to such violation.”

The trial justice observed the progress of the litigation and in his decision

detailed myriad occasions where Mr. Houze acted unreasonably and was

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“deliberately combative and confrontational[.]” This included when Mr. Houze

constructed a “spite fence” in front of Unit 9A, misled the clerk of the city building

inspector to obtain a permit for renovations to Unit 9, and defied the TRO by causing

the removal of the holly bushes and crabapple tree without the Antons’ approval.

Based on his consideration of Mr. Houze’s antagonistic behavior, the trial justice

saw fit to award the Antons attorneys’ fees; any arguments by the Houzes about the

justiciability of the claims or merits of the decision are unavailing.

The Houzes’ argument concerning the arbitration provision contained within

the declaration is also unpersuasive. The Houzes waived their right to arbitration

when they did not plead it in their answer, and when they failed to file a motion to

compel arbitration pursuant to G.L. 1956 § 10-3-4. See JHRW, LLC v. Seaport

Studios, Inc., 212 A.3d 168, 176 (R.I. 2019) (concluding that the defendants’

argument that they had a right to arbitrate was waived because it was not pled in the

defendants’ answer); see also Super. R. Civ. P. 8(c) (requiring a party to plead a

right to arbitrate in its answer); Super. R. Civ. P. 12(h) (stating that, besides certain

exceptions, a party waives all defenses the party did not plead in its answer); § 10-

3-3 (permitting a party to petition the court to stay a lawsuit until an arbitration had

been held in accordance with the terms of the arbitration agreement).

Moreover, Mr. Houze had knowledge of the attorneys’ fee provision in the

declaration by virtue of his admitted “line by line” reading of the governing

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documents; yet, he chose to proceed with litigation by answering the complaint and

asserting a counterclaim, rather than by pursuing arbitration. Having waived

arbitration with the knowledge that they might be liable for attorneys’ fees under the

terms of both the declaration and the act, the Houzes may not now raise the

arbitration provision in order to avoid otherwise properly awarded attorneys’ fees.

Accordingly, we perceive no abuse of discretion with respect to the trial

justice’s award of attorneys’ fees.

Conclusion

For the foregoing reasons, we affirm the judgment of the Superior Court and

remand the record in this case.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Charles A. Anton et al. v. Philippe L. Houze et al.

No. 2020-234-Appeal.
Case Number No. 2020-247-Appeal.
(NC 17-493)

Date Opinion Filed July 1, 2022

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

Written By Associate Justice Melissa A. Long

Source of Appeal Newport County Superior Court

Judicial Officer from Lower Court Associate Justice Brian Van Couyghen

For Plaintiffs:

R. Daniel Prentiss, Esq.
Attorney(s) on Appeal
For Defendants:

Thomas M. Dickinson, Esq.

SU-CMS-02A (revised June 2020)