James Mullowney, et al. v. William Masopust, et al.

Supreme Court
No. 2007-34-Appeal.
(NC 05-212)
James Mullowney et al. 	:
v. 	:
William Masopust 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.

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Supreme Court
No. 2007-34-Appeal.
(NC 05-212)
James Mullowney et al. 	:
v. 	:
William Masopust et al. 	:
Present: Williams, C.J., Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. 	The defendants, William Masopust, Joseph Salafia,
Karl Olsen, and Robert Goeldner, in their capacities as members of the board of directors of
Newport On-Shore Marina, Inc., and that corporate entity itself, appeal to this Court from the
entry of summary judgment in favor of the plaintiffs, James Mullowney, Michele Mullowney,
Pino Lotti, Robert Horgan, John Shekarchi, Rick Johnston, Daniel Sumner, Vahan Yaylaian, and
Robert F. Felhaber, the latter in his capacity as trustee of the Robert F. Felhaber Revocable Trust.
The defendants assert that the Superior Court’s ruling as to the illegality of one of the provisions
of their condominium declaration was erroneous; they also contend that the hearing justice
abused his discretion when he granted the plaintiffs’ motion for attorneys’ fees.
For the reasons set forth herein, we affirm the judgment of the Superior Court.
Facts and Travel
In 1985, the Newport On-Shore Condominium was created by the Newport On-Shore
Limited Partnership by means of a declaration that was recorded in the Newport Land Evidence
Records. 	In 1987, a fifth amendment to the declaration was recorded, thereby creating the
“Marina Phase” of the condominium. This phase consisted of sixty-five condominium units and

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sixty-five slips. 	The members of Newport On-Shore Marina, Inc., a Rhode Island corporation,
own “Marina Units” in the Newport On-Shore Condominium. These marina units are sixty-five
individual lockers that are used for the storage of boat equipment; appurtenant to each marina
unit is the right to use a specific boat slip at the marina. Each of the sixty-five units constitutes
an equal 0.2429 percent allocated interest in the common elements of the Newport On-Shore
Condominium.
The Newport On-Shore Marina Association (the Association), comprised of all marina
unit owners, operates the marina through a board of directors and officers. 	According to the
Marina Declaration, Article VI, “[a]ll Marina Unit Owners shall pay Common Expenses in the
form of a ‘Maintenance Fee’ to the Association or its designee for each Marina Unit owned.”
Until 2005, when the board of directors decided to change the method of assessment, all marina
unit owners paid an equal share of the common expenses—which meant that each paid 1/65th of
the Association’s overall budget.
James Mullowney, one of the plaintiffs, testified that he had been a condominium owner
since 1999 and that, as an owner, he had the right to use a 110-foot slip. 	At the annual
Association meeting on July 31, 2002, Mr. Mullowney was appointed to a committee assembled
for the purpose of reviewing the bylaws of the Association. 	Mr. Mullowney testified that the
committee focused in a particular manner on changing the method of assessment to a linear-foot
basis. 	According to the testimony of Mr. Mullowney, before the change was made the
committee received an opinion from a lawyer concerning the contemplated change; although it

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was never reduced to writing, that legal opinion1 advised the committee that such a change
would require a 100 percent vote of approval by the membership.
With respect to calendar years 2005 and 2006, the board of directors changed the method
of assessment and began to allocate fees based on the length of each owner’s boat slip; this
represented a change from the former method of assessment, whereby fees were assessed equally
to each of the sixty-five condominiums. 	The board assessed the fees at $50 per linear foot,
reasoning that owners with larger slips received proportionately greater benefits from each dollar
required to maintain and operate the marina.
On 	May 	12, 	2005, 	plaintiffs 	commenced 	this 	action 	against 	defendants, 	seeking
injunctive relief and a declaratory judgment. In due course, plaintiffs and defendants filed cross-
motions for summary judgment.
The issue before the Superior Court at the hearing on the motions for summary judgment
was whether or not the board of directors’ decision to change the method of assessment from the
equal-shares formula to the footage-based formula violated certain provisions of the Rhode
Island Condominium Act, G.L. 1956 chapter 36.1 of title 34 (Condominium Act).2
On August 11, 2006, the Superior Court granted plaintiffs’ motion for summary judgment
after finding that the board of directors’ having discretion to change the method of assessing
common expenses violated the plain language of § 34-36.1-3.15(c). The hearing justice stated:
“In § 34-36.1-3.15(c), the legislature authorized certain exceptions
to the assessment of common expenses, but used compulsory
language. 	A plain reading of the statute reveals that in order for
the exceptions in § 34-36.1-3.15(c) to apply, the declaration must
1 It is unclear from the record just how definitive or unequivocal was the referenced legal
opinion.
2 The relevant provisions of the Rhode Island Condominium Act are quoted and discussed
infra.

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require a different assessment method. 	The Marina Declaration
does not require the new slip size-based assessment.”
The hearing justice stated that allowing the board of directors to have discretion to change the
assessment method with respect to any particular budget item whenever the board of directors
determined that such item related to a characteristic of a particular unit would “practically
abrogate the specifically enumerated exceptions to the assessment of common expenses” in the
statute. 	The hearing justice further stated that allowing the board of directors to have
discretionary authority with respect to this matter would contravene the consumer protection
purpose of the statute.
Final judgment was entered on September 15, 2006, and defendants filed a notice of
appeal on October 2, 2006.
Following the entry of summary judgment, plaintiffs moved for an award of attorneys’
fees in accordance with § 34-36.1-4.17, which permits the awarding of attorneys’ fees “in an
appropriate case” in which a party has failed to comply with the Condominium Act. On January
16, 2007, the Superior Court granted plaintiffs’ motion for attorneys’ fees and awarded them fees
in the amount of $26,642.50. 	The defendants timely appealed, and this Court consolidated the
two appeals on June 19, 2007.
On appeal, defendants contend that the hearing justice misinterpreted the Condominium
Act, and they maintain that Article VI of the Marina Declaration does not violate § 34-36.1-3.15
of the Act. The defendants furthermore assert that, because the owners of larger slips receive a
proportionately greater benefit from the money expended to maintain and operate the marina, the
more equitable allocation method would be one based on slip size.
The defendants additionally maintain that, even if this Court determines that Article VI of
the Marina Declaration and the 2005 and 2006 size-based assessments violate the Condominium

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Act, the hearing justice’s award of attorneys’ fees should nevertheless be reversed as being an
abuse of discretion. 	The defendants assert that “there was no reasonable basis” for the hearing
justice to conclude that defendants acted in bad faith.
Standard of Review
This Court reviews a grant of summary judgment on a de novo basis. 	Franklin Grove
Corp. v. Drexel, 936 A.2d 1272, 1275 (R.I. 2007). 	Employing the same standards that the
hearing justice employed, this Court will uphold an entry of summary judgment if there are no
questions of material fact and the movant is entitled to judgment as a matter of law. 	Lacey v.
Reitsma, 899 A.2d 455, 457 (R.I. 2006); see also Ruggiero v. City of Providence, 893 A.2d 235,
237 (R.I. 2006).
The material facts pertinent to this case are undisputed, and the issue before us is one of
statutory construction. 	This Court engages in de novo review of questions of statutory
interpretation. 	Interstate Navigation Co. v. Division of Public Utilities and Carriers of Rhode
Island, 824 A.2d 1282, 1287 (R.I. 2003); see also State v. Fritz, 801 A.2d 679, 682 (R.I. 2002).
With respect to the issue of attorneys’ fees, this Court will uphold a presiding judicial
officer’s award of attorneys’ fees unless such award constitutes an abuse of discretion. 	Rhode
Island Insurers’ Insolvency Fund v. Leviton Manufacturing Co., 763 A.2d 590, 598 (R.I. 2000).
Analysis
I. 	The Rhode Island Condominium Act
Adopted in 1982, chapter 36.1 of title 34, as enacted by P.L. 1982, ch. 329, § 2, is known
as the Rhode Island Condominium Act (Condominium Act). The Condominium Act was made
applicable to any condominium created in Rhode Island after July 1, 1982. 	See § 34-36.1-
1.02(a)(1); see also America Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117, 127

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(R.I. 2004). This Court has previously observed that the Condominium Act “ ‘contains a strong
consumer protection flavor’,” and has remarked upon the statute’s “clear direction” that, except
where it expressly provides for the possibility, provisions of the statute are not to be modified by
agreement. 	America Condominium Association, Inc. v. IDC, Inc., 870 A.2d 434, 437 (R.I.
2005).
In view of the fact that the Newport On-Shore Condominium was created in 1985, it
unquestionably falls within the purview of the Condominium Act. 	This case requires us to
analyze whether the provision of the Newport On-Shore Condominium’s declaration that allows
the board of directors to alter the method of fee assessment contravenes the mandates of the
Condominium Act.
The 	allocation 	of 	common 	expenses 	is 	addressed 	in 	§ 	34-36.1-2.07(a) 	of 	the
Condominium Act. It provides as follows:
“The 	declaration 	shall 	allocate 	a 	fraction 	or 	percentage 	of
undivided interests in the common elements and in the common
expenses of the association, and a portion of the votes in the
association, to each unit * * * and state the formulas used to
establish those allocations.”
Section 34-36.1-3.15 describes the method of assessment for common expenses and provides in
pertinent part:
“(b)(1) Except for assessments under subsections (c)—(e), all
common 	expenses 	must 	be 	assessed 	against 	all 	the 	units 	in
accordance 	with 	the 	allocations 	set 	forth 	in 	the 	declaration
pursuant to § 34-36.1-2.07(a).” (Emphasis added.)

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The exceptions that are set forth in subsection (c) of § 34-36.1-3.153 stipulate that, to the
extent required by the declaration, the distribution of certain costs among members may be based
on a method that correlates the percentage of benefits received with the percentage of costs paid.
For example, subsection (c)(1) of § 34-36.1-3.15 authorizes, to the extent required by the
declaration, the assessment of costs for a “limited common element” against the units to which
that element is assigned. The subsection allows such assessment to be made “equally, or in any
other proportion that the declaration provides.” Id. Subsection (c)(2) provides that, to the extent
required by the declaration, “[a]ny common expense or portion thereof benefiting fewer than all
of the units must be assessed exclusively against the units benefited[.]” 	Subsection (c)(3)
provides for a similar assessment for disproportionate benefit gained from insurance.
The plaintiffs argue that a particular provision of the Marina Declaration, Article VI,
violates the mandates of the just-cited statutory provisions. Article VI of the Marina Declaration
delineates the maintenance fees and other assessments, providing in relevant part as follows:
“The 	Maintenance 	Fee 	for 	each 	Marina 	Unit 	shall 	be
determined by applying a fraction, the numerator of which is the
number of Marina Units owned by a particular Marina Owner and
the denominator of which is the total number of Marina Units in
the Marina as of the first day of each fiscal year of the Marina
Association, to the total of all Common Expenses * * * and shall
then be assessed against and prorated among all of the Marina Unit
Owners in proportion to the number of Marina Units owned.
Provided, 	however, 	that 	the 	Board 	of 	Directors 	may, 	in 	its
reasonable discretion, allocate between Marina Slips of differing
size those budget items which it determines are reasonably related
to the size of a slip. * * * Such an allocation, if adopted, will result
in Marina Unit Owners being assessed different Maintenance Fees
based on the size of slip used.” (Emphasis added.)
3 Subsections (d) and (e) of G.L. 1956 § 34-36.1-3.15 are not relevant to the issues
involved in the instant case.

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Mindful of the fact that this Court “is the final arbiter with respect to questions of
statutory construction,” we shall now proceed to employ our long-established procedure for
interpreting statutes. 	New England Expedition-Providence, LLC v. City of Providence, 773
A.2d 259, 263 (R.I. 2001). 	In analyzing a statute comprised of language that is clear and
unambiguous, this Court applies the statute as written by giving the words their plain and
ordinary meaning. See Chambers v. Ormiston, 935 A.2d 956, 960 (R.I. 2007); see also State v.
DiCicco, 707 A.2d 251, 253 (R.I. 1998). 	When this Court must “decide what the General
Assembly intended when it enacted a particular statute, we always begin with the principle that
the plain statutory language is the best indicator of legislative intent.” 	Chambers, 935 A.2d at
961 (internal quotation marks omitted).
The clear language of the Condominium Act unambiguously states that the differential
method of assessing the expenses of a condominium association is permissible—but only to the
extent required by the declaration. The declaration of Newport On-Shore Marina, Inc. does not
require a footage-based assessment of the costs of operating the marina. Instead, the declaration
provides that the maintenance fee for each marina unit “shall be determined” by dividing equally
among the units the common expenses. 	Later in the text of that same declaration, the board of
directors is provided with the discretion to allocate, based on slip size rather than ownership
percentage, certain budgetary items which it determines are related to slip size.
In no sense can we conclude that such language, which vests the board of directors with
discretion to change the method of assessing the marina’s costs, requires that a footage-based
method of assessment be employed. 	As such, Article VI’s grant of discretion in that regard
clearly violates the crucial criterion set forth in § 34-36.1-3.15. 	We agree with the hearing
justice’s observation that “the Defendants overlook the use of the term ‘required’ in the

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introductory statement of § 34-36.1-3.15(c) * * *.” 	We further agree with the hearing justice’s
statutory construction, in which he stated that “[a] plain reading of the statute reveals that in
order for the exceptions * * * to apply, the declaration must require a different assessment
method.”
We therefore conclude that the board of directors’ modification of the method of
assessing common expenses violated the plain language of the Condominium Act. 	Because
Article VI of the Marina Declaration here at issue contravenes the express mandates of the
Rhode Island Condominium Act, the decision of the hearing justice to grant summary judgment
in favor of plaintiffs must be affirmed.
II. 	Attorneys’ Fees
Section 34-36.1-4.17 authorizes the trial court, “in an appropriate case,” to award
reasonable attorneys’ fees for failure to comply with the Condominium Act. 4 The award of
attorneys’ fees, when statutorily or contractually authorized, is a matter confided to the sound
discretion of the presiding judicial officer. 	Women’s Development Corp. v. City of Central
Falls, 764 A.2d 151, 162 (R.I. 2001). Exercising the discretion that the statute vests in him, the
hearing justice in this case found that defendants acted “at least unreasonably” and caused
4 It is important to note that the statutory language in the above-cited attorneys’ fees
provision vests significantly broader discretion in the presiding judicial officer than is the case
with some other statutes that authorize the awarding of attorneys’ fees. See, e.g., G.L. 1956 § 9-
1-45(1) (authorizing the award of attorneys’ fees to the prevailing party in an action “arising
from a breach of contract” when the trial justice “[f]inds that there was a complete absence of a
justiciable issue of either law or fact raised by the losing party”; G.L. 1956 § 6-27-7(a)
(mandating that a creditor who “willfully imposes a finance charge in violation of § 6-27-4” be
liable for attorneys’ fees); G.L. 1956 § 5-38.3-6(c) (requiring award of attorneys’ fees when the
court issues a permanent injunction under the Motor Vehicle Repair Shop Act); G.L. 1956 § 6A-
2.1-108 (requiring the award of attorneys’ fees in some instances wherein the court finds
unconscionability in consumer leases).

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plaintiffs to “suffer the expense of substantial and complex litigation in order to vindicate their
rights.”
We have reviewed the record, and we perceive therein no reason for concluding that the
hearing justice abused his discretion when he found that this was an “appropriate case” for an
award of attorneys’ fees under the statute. The record sufficiently supports the hearing justice’s
conclusion that defendants acted “unreasonably,”5 and therefore we shall not undo his award of
attorneys’ fees.6
Conclusion
For the reasons delineated in this opinion, the defendants’ appeal is denied and dismissed.
The judgment appealed from is affirmed, and the papers in the case may be remanded to the
Superior Court.
Although Justice Goldberg was present at the oral argument, she thereafter recused.
5 We note that the hearing justice’s finding was phrased in the disjunctive; he found that
defendants had “acted in bad faith or at least unreasonably.” (Emphasis added.)
Because unreasonable action would, in our view, be a sufficient predicate for making this
case an appropriate one for the award of attorneys’ fees, we need not and do not decide whether
there was any action in bad faith.
6 Since a specific statute permits the award of attorneys’ fees in this instance, we are not
here confronted with any deviation from what is known as the “American Rule” with respect to
awards of attorneys’ fees. 	See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.
714, 717 (1967) (“The rule * * * has long been that [attorneys’] fees are not ordinarily
recoverable in the absence of a statute or enforceable contract providing therefor.”); see also
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975) (“In the United
States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from
the loser.”); Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1147-48 (Fla. 1985)
(describing the nature and the origin of both the “English Rule” and the “American Rule”); see
generally 22 Am.Jur.2d Damages § 430 at 384-85 (2003).

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COVER SHEET
TITLE OF CASE: 	James Mullowney et al. v. William Masopust et al.
DOCKET NO: 	2007-34-Appeal
COURT: 	Supreme
DATE OPINION FILED: 	March 17, 2008
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Newport
JUDGE FROM OTHER COURT: 	Judge Edwin Gale
JUSTICES: 	Williams, C.J., Flaherty, J., Suttell and Robinson, JJ.
NOT PARTICIPATING: 	Justice Maureen McKenna Goldberg
WRITTEN BY: 	Justice William P. Robinson, III, for the Court
ATTORNEYS:
For Plaintiff: 	Peter Regan, Esq.
ATTORNEYS:
For Defendant: Kevin P. Gavin, Esq.