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Villas by the Sea v. Garrity
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 93
Docket:	Yor-01-37
  on Briefs:	May 29, 2001
Decided:	June 21, 2001




	[¶1]  Villas by the Sea Owners Association appeals from a judgment
entered in the Superior Court (York County, Cole, J.) awarding attorney fees
to Michael and Patricia Garrity.  Finding no error of law or abuse of
discretion, we affirm the judgment of the trial court.
	[¶2]  This is the parties' second appearance before us.  In Villas By
The Sea Owners Association v. Garrity (Villas 1), 2000 ME 48, 748 A.2d
457, we affirmed the judgment of the trial court finding that the Garritys'
unit did, in fact, include the "loft."  The Association had brought a suit
claiming that (1) the space above the Garritys' unit, referred to by the
parties and by us as the "loft," was common area; and (2) that the Garritys
were excluding other unit owners from using that area by their occupancy
thereof.  The Association also sought a fine against the Garritys for their
alleged violation of the condominium declaration.
	[¶3]  Based upon our decision in Villas 1, the Garritys filed a motion
for and were granted attorney fees pursuant to 33 M.R.S.A. § 1603-116.
"Generally, attorney fees may only be awarded where there is a contractual
relationship allowing for the award of such fees or where there is explicit
statutory authorization."  Mancini v. Scott, 2000 ME 19, ¶ 10, 744 A.2d
1057, 1061 (citing Poussard v. Commercial Credit Plan, Inc. of Lewiston,
479 A.2d 881, 883 (Me. 1984)).  The Maine Condominium Act explicitly
provides that "[a] judgment or decree in any action or suit brought under
this section shall include costs and reasonable attorney's fees for the
prevailing party."  33 M.R.S.A. § 1603-116(g) (1999) (emphasis added). 
The question then, is whether the Association's suit, and the Garritys'
resulting counterclaim, fall within the purview of the statute.
	[¶4]  In construing a statute, we "'look first to the plain meaning of
the statutory language to give effect to legislative intent, and if the meaning
of the statute is clear on its face, then we need not look beyond the words
themselves.'"  Stage Neck Owners Ass'n v. Poboisk, 1999 ME 52, ¶ 9, 726
A.2d 1261, 1263 (quoting Cook v. Lisbon Sch. Comm., 682 A.2d 672, 676
(Me. 1996)).  
	[¶5]  In Stage Neck Owners Association, we stated:
[s]ection 1603-116 creates an automatic lien for any assessment
levied against a condominium unit and establishes the process
for enforcement.  Plaintiff needed to do nothing more than
record the declaration of condominium to provide record notice
and perfect liens on defendants' condominium units for valid
assessments.  Although plaintiff did not, in its complaint,
explicitly request the enforcement of the liens and reference
the Act, it sought the validation of its 1996 assessment, which, if
granted, in turn would give rise to an automatic lien.  If
defendants continued to refuse to pay the assessment after the
court deemed it valid and entered a money judgment against
defendants, plaintiff could arguably have proceeded to enforce
the lien.  Thus, plaintiff's request for relief invoked section
1603-116 and triggered the provision for attorney fees.
Id., 1999 ME 52, ¶ 9, 726 A.2d at 1263-64 (emphasis added).
	[¶6]  This case was first initiated when the Association sued seeking a
judgment declaring that the Garritys' use of the loft area violated the
condominium declaration because the loft is a common area.  The complaint
sought a court order requiring the Garritys to pay the Association a "fine in
the amount of $25.00 per day for each day of such violation after
December 7, 1995[.]"{1}  In response, the Garritys filed an answer and an
amended answer, asserting, inter alia, a counterclaim seeking a declaratory
judgment that the loft space was not a common area.
	[¶7]  For the trial court to consider the issue of whether the Garritys
were liable to the Association for the $25.00 per day fine, the court first had
to determine who owned the loft.  Moreover, as the Garritys aptly state, ". . .
the primary purpose of the Association's lawsuit was to collect the
assessments that the Association imposed against the Garritys for their use
and alteration of the loft area."  If the Association had not sought to fine the
Garritys for using the loft area, the Garritys would not have been forced to
seek a declaratory judgment to quiet title to the area.  Therefore, as we
stated in Stage Neck Owners Association, the fines levied by the Association
pursuant to section 1603-116 triggered the attorney fees provision.  See 33
M.R.S.A. § 1603-116(g).  Because the Garritys were the prevailing party on
the underlying action, the trial court did not err in awarding them attorney
fees pursuant to 33 M.R.S.A. § 1603-116.
	[¶8]  The Association further argues that the trial court exceeded the
bounds of its discretion when it awarded the Garritys $15,031.90 in
attorney fees.  We review the trial court's determination of attorney fees for
an abuse of discretion.  Saucier v. Allstate Ins. Co., 1999 ME 197, ¶ 34, 742
A.2d 482, 492 (citations omitted).  When determining an appropriate
amount of attorney fees the trial court is to consider the following factors:
(1) the time and labor required; (2) the novelty and difficulty of
the questions presented; (3) the skill required to perform the
legal services; (4) the preclusion of other employment by the
attorneys due to acceptance of the case; (5) the customary fee in
the community; (6) whether the fee is fixed or contingent; (7)
the time limitations imposed by the client or circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation and ability of the attorneys; (10) the
undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases.
Mancini, 2000 ME 19, ¶ 10, 744 A.2d at 1061 (quoting Poussard, 479 A.2d
at 884).
	[¶9]  The trial court's well-reasoned order reflects that it properly
considered the Poussard factors as discussed in Mancini.  The court
concluded that, 
	I have reviewed the affidavit of Charles March, Esq. and
Peter Clifford, Esq. and the itemized bill of Peter L. Thompson,
Esq.  I find both the number of hours expended in this litigation
and the hourly fee are reasonable and consistent with similar
services provided by others in the marketplace.  I further find
that the novelty and difficulty of the questions presented in this
litigation, the amount at stake and the results obtained support
the Defendants' attorney [sic] request for counsel fees.  I
therefore find that the Defendants are entitled to an award of
attorney fees in the amount of $15,031.90. . . .
	[¶10]  Based on the record evidence, the trial court did not exceed
the bounds of its discretion when it awarded the Garritys $15,031.90 in
attorney fees.
	The entry is:
Judgment affirmed.
Attorney for plaintiff: Durward W. Parkinson, Esq. Bergen & Parkinson, LLC 62 Portand Road Kennebunk, ME 04043 Attorney for defendants: Peter L. Thompson, Esq. Coles & Thompson, LLC P O Box 1028 Kennebunk, ME 04043
FOOTNOTES******************************** {1} . The Declaration of Condominium provides for a $25.00 per day fine for violations of the rules regulating common areas in the condominiums.