Angela Giguere Kumble v. Michael Voccola Michael Voccola v. Angela Giguere Kumble ( 2021 )

June 30, 2021
Supreme Court
Angela Giguere Kumble et al. :
v. : No. 2019-49-Appeal.
(PB 12-3338)
Michael Voccola et al. :
Michael Voccola et al. :
v. : No. 2019-47-Appeal.
(PB 12-3476)
Angela Giguere Kumble 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 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
(Dissent begins on page 20)
Angela Giguere Kumble et al. :
v. : No. 2019-49-Appeal.
(PB 12-3338)
Michael Voccola et al. :
Michael Voccola et al. :
v. : No. 2019-47-Appeal.
(PB 12-3476)
Angela Giguere Kumble et al. :
Present: Suttell, C.J., Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. This matter arises from a long-fought battle
between the beneficiaries and trustees of two trusts, culminating in the trustees
seeking fees for their services and expenses, including attorneys’ fees incurred on
behalf of the trusts and interest owed on those fees. The beneficiaries appeal from a
judgment of the Superior Court granting the trustees’ petition for said expenses. For
the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Procedural History
In April 2002, Frederick Carrozza, Jr. created a will that, upon his death,
would form two testamentary trusts. Mr. Carrozza formed these trusts in part to
prevent his father from obtaining control of his assets. Mr. Carrozza named two
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“life-long friends,” the plaintiff, Michael Voccola, and Daniel Shedd (collectively
trustees), as co-trustees of both trusts; in return for their services as trustees, they
were to receive “reasonable compensation.” Mr. Voccola was also the executor of
Mr. Carrozza’s will. Mr. Carrozza passed away in August of that same year, leaving
behind the defendants, his wife Angela Giguere Kumble and a daughter, Christine
Tellefsen (collectively beneficiaries). At the time of his death, Mr. Carrozza owned
multiple properties that became part of the trust estate, and Mr. Voccola permitted
Ms. Kumble and Ms. Tellefsen to continue to manage those properties, as they had
prior to Mr. Carrozza’s death.
Shortly thereafter, Mr. Carrozza’s father and other Carrozza family members
filed suit against Mr. Voccola and the beneficiaries in an effort to impose a trust on
the properties for the benefit of the Carrozza family. Initially, Mr. Voccola, Mr.
Shedd, and the beneficiaries were aligned in defending their interests against the
Carrozza family. They hired Evan Leviss (Attorney Leviss) to represent the estate
and the beneficiaries in protracted litigation that came before this Court on two
separate appeals.1
Unfortunately, however, the relationship between the trustees and
beneficiaries fractured over time. On June 13, 2012, the trustees notified Attorney
1
The two cases before this Court involving the Carrozza family were Carrozza v.
Voccola, 962 A.2d 73 (R.I. 2009) (Carrozza I) and Carrozza v. Voccola, 90 A.3d
142 (R.I. 2014) (Carrozza II).
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Leviss that they were removing him as counsel because they believed a conflict had
arisen with his continued representation. A week later, Mr. Voccola informed the
beneficiaries that he had retained the law firm of Duffy & Sweeney and intended to
hire a third-party management company to oversee the trusts’ properties because he
had become frustrated with Ms. Tellefsen’s management of the properties. Mr.
Voccola disposed of one of the trust properties and used the proceeds to pay Duffy
& Sweeney, without first disclosing to the beneficiaries his intention with regard to
the proceeds.
On June 27, 2012, Ms. Kumble renounced her interest in both trusts and
demanded that they be terminated, which would accelerate the distribution of assets
to Ms. Tellefsen. According to the beneficiaries, Ms. Tellefsen simultaneously
demanded, in writing, that the combined trust assets be distributed to her as a named
residuary beneficiary.
Two days after Ms. Tellefsen’s written demand to the trustees, Ms. Kumble
and Ms. Tellefsen filed a two-count verified complaint for specific performance and
injunctive relief in PB 12-3338. In their prayer for relief, the beneficiaries asked
that the trustees distribute the trust assets to Ms. Tellefsen and be barred from making
any further disbursements from the trusts, from transferring management of the trust
properties “to a company or individual other than [the beneficiaries,]” and from
removing the trusts’ counsel, Attorney Leviss. In response, on July 5, 2012, the
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trustees sought a writ of replevin in PB 12-3476, demanding that Ms. Kumble, Ms.
Tellefsen, and Attorney Leviss return property and records belonging to the estate
and trust, which the trial justice granted in part.
Thereafter, the beneficiaries and the trustees each filed counterclaims in the
respective actions. The beneficiaries counterclaimed for breach of fiduciary duty
and breach of the duty of loyalty.2 As part of those counterclaims in PB 12-3476,
the beneficiaries asked the court to determine that the trustees were not entitled to
any further trustee or fiduciary fees and to repay the trust for money already paid to
counsel hired on behalf of the trusts after the beneficiaries renounced their interests.
In their counterclaim in PB 12-3338, the trustees alleged embezzlement and
fraudulent conversion, unlawful appropriation, larceny, breach of fiduciary duty and
duty of care, conversion, and tortious interference with business relations.
The beneficiaries’ initial claims resolved in November 2012, when the trial
justice granted their claim for specific performance and ordered distribution of trust
assets to Ms. Tellefsen, subject to any fees awarded to the trustees. In December
2012, the parties entered into a consent order in PB 12-3338 that provided, in part,
2
The beneficiaries’ original counterclaim in PB 12-3476, filed on August 6, 2012,
included counts for tortious interference with a judgment, breach of fiduciary duty,
and breach of the duty of loyalty, and sought injunctive relief to prevent the trustees
from transferring management of the trust properties to another company and to
prevent them from removing Attorney Leviss. They later amended their
counterclaim to claim only breach of fiduciary duty and breach of the duty of loyalty.
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that if trust assets were “insufficient to pay for any expenses, fees or liabilities
incurred in the administration of the Trusts and approved by the [c]ourt, Tellefsen
and Kumble shall personally indemnify the Trustees[.]” The consent order also
stated that certain trust assets were to be held in escrow by the beneficiaries’ counsel.
Therefore, the consent order terminated the trustees’ access to trust assets.
Additionally, the consent order provided, “All parties waive any right to appeal this
[o]rder and agree that it shall be fully binding and enforceable upon entry by this
[c]ourt.”
A few days later, the trustees filed a “Petition for Instructions and Order for
Indemnity Payment” in PB 12-3338 for fees that, they contended, were incurred in
the administration of the trusts, including attorneys’ fees owed to Duffy & Sweeney.
The trustees argued that they were entitled to such fees under G.L. 1956 § 18-6-1 as
a trust expense. The petition included a copy of the bill from Duffy & Sweeney
which noted, “A finance charge of 1% per month will be assessed on all accounts
past due 30 days.” The trial justice ordered various on-account payments, subject to
disgorgement, throughout the course of the litigation, over the objection of the
beneficiaries—including in a motion to reconsider after the trial justice ordered one
such payment.
After consolidation of the beneficiaries’ action and the trustees’ action, the
trial justice held an eleven-day nonjury trial in October 2014, regarding the
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beneficiaries’ and trustees’ counterclaims, the decision on which would impact the
fees, if any, to which the trustees were entitled. In a written decision dated May 11,
2017, the trial justice awarded compensation to Mr. Voccola as executor of Mr.
Carrozza’s estate, as well as to the trustees for their work.3 Because the trial justice
determined that the trustees were entitled to fees, he then denied the beneficiaries’
counterclaims for breach of fiduciary duty and breach of the duty of loyalty, thus
resolving all of the beneficiaries’ counterclaims. Likewise, he denied the trustees’
counterclaims for embezzlement, fraudulent conversion, larceny, breach of fiduciary
duties, and tortious interference with business relations.
Turning to the trustees’ request to be indemnified for their attorneys’ fees, the
trial justice considered the beneficiaries’ various arguments against payment of
attorneys’ fees, including that the fees incurred in pursuit of the trustees’ right to
compensation were merely “fees for fees.” The trial justice noted that the consent
order provided that the beneficiaries would indemnify the professional fees of the
trustees if the trust assets were insufficient and concluded that he had both
contractual authority, under the consent order, and statutory authority, pursuant to
§ 18-6-1, to award attorneys’ fees. The trial justice granted the trustees’ request for
3
In a stipulation dated November 6, 2014, the parties had agreed to permit the
Superior Court to determine the executor fees owed to Mr. Voccola. The parties
agreed not to challenge the jurisdiction of the Superior Court to determine the
executor compensation.
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attorneys’ fees, with the sole limitation that whether the trustees were entitled to fees
after March 31, 2015, would be determined at a later date.4 The trial justice ordered
that the valuation of attorneys’ fees would be determined in accordance with the
procedures set forth in Tri-Town Construction Company, Inc. v. Commerce Park
Associates 12, LLC, 139 A.3d 467 (R.I. 2016), which requires affidavits or expert
testimony “from counsel who is a member of the Rhode Island Bar and who is not
representing the parties to the action[.]” Tri-Town Construction Company, Inc., 139
A.3d at 479-80. The valuation would also be determined during a future proceeding.
Partial judgment entered on June 5, 2017; however, neither the trustees nor the
beneficiaries appealed therefrom.
One month after the May 2017 decision, the beneficiaries sought release of all
real estate, as well as partial release of the trust funds from the escrow account,
arguing that the trustees were “substantially over-secured.” The trustees objected
and pointed out that the accrued legal fees were “subject to interest at the rate of 12%
annually, compounded monthly[.]” The trial justice denied the beneficiaries’
motion.
The trial justice issued a bench decision on January 17, 2018, after the parties
had submitted affidavits from Rhode Island attorneys concerning the amount of the
4
In rendering his decision, the trial justice divided the fees into various categories,
including fees related to the trial and incurred through March 31, 2015, which was
the last day of the attorneys’ billing statement, and for fees incurred after that date.
-7-
requested attorneys’ fees. The affidavit presented by the trustees made specific
mention of the interest rate in the agreement with Duffy & Sweeney; the affidavit
from the beneficiaries contained no such reference. The trial justice, after reviewing
the affidavits, concluded that the affiants disagreed on four main points: the hourly
rate billed; whether the “protracted hearings” were the joint responsibility of the
parties; whether certain expenses were reimbursable; and whether the trustees’
counsel was successful, a factor that the trial justice found went to the issue of the
proportionality of the fees requested to the success of the litigation.
The trial justice accepted the trustees’ expert legal counsel’s opinion that the
hourly legal-fee rate was reasonable based on the trustees’ attorneys’ experience and
the circumstances of this case. He determined that neither side was more at fault for
the protracted litigation and disallowed any reimbursement for costs of computer
research and meals. Regarding whether the attorneys’ fees award was proportional
to the damages recovered by the trustees, the trial justice indicated that the action
entailed more than the trustees recovering compensation for administering the trust
and estate; the trial justice specifically noted that other claims made by the
beneficiaries against the trustees were resolved in favor of the trustees. The trial
justice granted the trustees’ request for attorneys’ fees in the full amount requested,
$1,040,293.75, including fees incurred after March 2015, less $276,525 that had
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previously been paid. Counsel for the beneficiaries noted at the conclusion of the
hearing that prejudgment interest remained an outstanding issue in the case.
Thereafter, the trustees submitted a proposed order to implement the trial
justice’s decision, which included the addition of prejudgment interest to the
attorneys’ fees award. The beneficiaries objected to the proposed order, asserting
that prejudgment interest was not appropriate. Furthermore, the beneficiaries
contended that the fees were not “due or owing” until the trial justice awarded them,
and, thus, there was no time value of money that would justify an award of interest
prior to the January 2018 decision. They also argued that an interest award would
be inequitable given that the time between the trial and the trial justice’s decision
and the ultimate award of fees was lengthy and no fault of the beneficiaries. “[A]t
most, the [t]rustees are entitled to indemnification in accordance with § 18-6-1[,]”
according to the beneficiaries. They also disputed the manner in which the trustees
calculated the interest.
In their response to the beneficiaries’ objection to the proposed order, the
trustees countered that prejudgment interest applies to “claims such as these for
payment of trust expenses from a trust[.]” The trustees contended that there is no
distinction between trustee fees, on which the beneficiaries had previously paid
prejudgment interest, and the reimbursement of legal fee expenses; the trustees
argued that this was because both are trustee expenses under § 18-6-1 and are thus
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both subject to prejudgment interest. They also argued that their claim for payment
accrued many years ago when the legal fees were incurred. Finally, the trustees
contended that their calculation of interest complies with Rhode Island law.
In March 2018, the trial justice held a hearing on the interest issue. During
the hearing, counsel for the trustees provided the engagement letter between the
trustees and Duffy & Sweeney to the trial justice, without objection from the
beneficiaries, for the trial justice to confirm the terms of engagement as cited in the
trustees’ memorandum. During argument, the trustees contended that interest would
be owed under either § 9-21-8 or § 18-6-1 and summarized for the trial justice how
they calculated the interest. Counsel for the beneficiaries acknowledged that he had
seen the engagement letter sometime after August 2012, but countered that, because
neither § 18-6-1, § 9-21-8, nor § 9-21-10 discusses interest, those statutes were
inapplicable in this case.
On April 16, 2018, the trial justice issued a written decision. He noted that
the retainer agreement had been provided to counsel for the beneficiaries early in the
case and that they did not object when the trustees presented a copy of the
engagement letter to the court at the March 2018 hearing. The trial justice found
that one percent per month, as called for in the agreement, was reasonable for bills
unpaid after thirty days and that such a “service charge” qualified as a “reasonable
expense[] and cost[] incurred in the execution of the trust” under § 18-6-1.
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Subsequently, the beneficiaries filed a motion for reconsideration on the addition of
interest. The trial justice treated the motion as a motion to vacate and determined
that none of the grounds for vacating an order applied in that instance; he therefore
denied the motion. An order implementing the denial of the beneficiaries’ motion
for reconsideration entered on June 26, 2018.
Final judgment in the consolidated cases was entered on September 5, 2018.
The judgment indicated that reasonable attorneys’ fees in the amount of
$1,091,981.66 were to be indemnified by the trust and that an unpaid balance of
$815,456.66 remained (as $276,525 had previously been paid). 5 Interest on the
attorneys’ fees was $431,654.26 and would accrue at the rate of $268.10 per day
through the conclusion of any appeal. The beneficiaries timely filed a notice of
appeal in each of the Superior Court actions, and the appeals were then consolidated
before this Court.
Before this Court, the beneficiaries seek review of the bench decision issued
on January 17, 2018, the written decision dated April 16, 2018, and the final
judgment entered on September 5, 2018. They argue that the award of attorneys’
5
In a stipulated order dated August 9, 2018, the parties agreed to add $50,000 to the
award of attorneys’ fees. The $1,091,981.66 figure included costs. The
beneficiaries also attempted to retain their right to appeal the May 2017 decision by
this stipulated order. We admonish the parties that the timeframe within which to
file an appeal, as set forth in Article I, Rule 4 of the Supreme Court Rules of
Appellate Procedure, cannot be enlarged except as set forth in that rule.
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fees and costs was unreasonable, disproportionate, and an abuse of discretion. They
also challenge the award of interest as contrary to the law and the facts.
Award of Fees and Costs
“This Court reviews an award of attorney’s fees for an abuse of discretion.”
Sisto v. America Condominium Association, Inc., 140 A.3d 124, 129 (R.I. 2016)
(quoting Pearson v. Pearson, 11 A.3d 103, 108 (R.I. 2011)). “It is well within the
authority of the trial justice to make an attorneys’ fee award determination after
considering the circumstances of the case.” Id. (quoting Keystone Elevator
Company, Inc. v. Johnson & Wales University, 850 A.2d 912, 920 (R.I. 2004)).
However, the Court does not “merely endorse[] the findings made by the lower
court.” Hogan v. McAndrew, 131 A.3d 717, 722 (R.I. 2016). “Abuse occurs when a
material factor deserving significant weight is ignored, when an improper factor is
relied upon, or when all proper and no improper factors are assessed, but the court
makes a serious mistake in weighing them.” Id. (quoting Independent Oil and
Chemical Workers of Quincy, Inc. v. Procter & Gamble Manufacturing Company,
864 F.2d 927, 929 (1st Cir. 1988)). This standard of review applies equally where
it is a trustee seeking such an award. See In re Quinn’s Estate, 64 R.I. 322, 322, 12
A.2d 275, 276 (1940).6
6
The trustees contend that the “clearly erroneous” standard applies, as articulated in
Notarantonio v. Notarantonio, 941 A.2d 138 (R.I. 2008), because the beneficiaries
seek review of findings made in a nonjury trial. See Notarantonio, 941 A.2d at 144.
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The beneficiaries contend that the trial justice erred by ignoring “material
factor[s] deserving significant weight”—the proportionality of the fees to the
underlying case and its outcome, as well as the trustees’ limited success in the
underlying case. The beneficiaries additionally contend that the trustees should not
be awarded “fees for fees” and argue that this Court should make a “significant
downward adjustment” of the fees incurred after the trustees and executor were fully
compensated. The beneficiaries’ arguments lack merit.
In Tri-Town, we clarified that the proper source of expert testimony to
establish the reasonableness of legal fees is “a member of the Rhode Island Bar * * *
who is not representing the parties to the action in which fees are sought.” Tri-Town
Construction Company, Inc., 139 A.3d at 480. Tri-Town did not alter the criteria
required for assessing the reasonableness of a fee; those factors, as established in
Colonial Plumbing & Heating Supply Co. v. Contemporary Construction Co., Inc.,
464 A.2d 741 (R.I. 1983), remain unchanged:
“(1) The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to perform
the legal service properly.
“(2) The likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer.
We need not address this argument because the clearly erroneous standard compels
our deference to the trial justice’s decision, as does the abuse-of-discretion standard.
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“(3) The fee customarily charged in the locality for similar
legal services.
“(4) The amount involved and the results obtained.
“(5) The time limitations imposed by the client or by the
circumstances.
“(6) The nature and length of the professional relationship
with the client.
“(7) The experience, reputation, and ability of the lawyer
or lawyers performing the services.
“(8) Whether the fee is fixed or contingent.” Colonial
Plumbing & Heating Supply Co., 464 A.2d at 743.
After careful review of the January 17, 2018 bench decision, as well as the
extensive record in this matter, we are satisfied that the trial justice acknowledged
and properly weighed these factors; furthermore, he did so after assessing
comprehensive affidavits from members of the Rhode Island Bar who did not
represent the parties to the underlying action.
As the trial justice noted in his decision, the affiants agreed on many of the
Colonial Plumbing factors, but diverged on four points—the hourly rate billed;
whether the “protracted hearings” were the joint responsibility of the parties;
whether certain expenses were reimbursable; and whether the trustees’ counsel was
successful. In evaluating the question of success, the trial justice explicitly
considered the proportionality of the fee award to the underlying case as a whole,
including the claims of breach of fiduciary duty and breach of duty of loyalty. He
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found that “[t]he results obtained transcended the number of dollars recovered by
way of fees” when evaluating the trustees’ success on the “[s]ubstantial claims”
asserted against them. Thus, although consideration of proportionality is not
required under Tri-Town or Colonial Plumbing, the trial justice did, in fact, address
proportionality in this case. It cannot be said that the trial justice ignored “material
factors deserving significant weight” resulting in an abuse of discretion.
Moreover, it is important to note that the genesis of the fee award is in the
May 11, 2017 decision, which the trial justice issued after an eleven-day trial on
hard-fought claims. The trial justice awarded compensation owed to the executor
and trustees, denied the substantial claims of wrongdoing alleged by the
beneficiaries, and considered “perhaps the most pressing issue presented in this case:
whether the [t]rustees are entitled to indemnification of the attorneys’ fees and
expenses they claim were incurred on behalf of the trust.” He rejected the
beneficiaries’ various arguments against such indemnification, including their
assertion that recovery would amount to “fees for fees.” The trial justice concluded
that he had authority to award attorneys’ fees based upon § 18-6-1 and the parties’
consent order, which, he noted, provided that the beneficiaries would indemnify the
professional fees of the trustees if the trust assets were insufficient. The beneficiaries
did not appeal the May 11, 2017 decision; consequently, the beneficiaries’ second
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argument, that the trustees should not be awarded fees for pursuing their own fees,
is waived.7
Award of Interest
The parties dispute which standard of review applies to the second issue
presented on appeal. The beneficiaries frame the issue as whether there was “any
legal basis” for the trial justice’s decision to award interest in addition to the fee
award. They argue that whether characterized as prejudgment interest or a “service
charge,” this Court should review the award of interest as an error of law subject to
a de novo standard of review. Conversely, the trustees frame the issue as “whether
and to what extent a finance charge * * * constitutes an indemnifiable expense” and
contend that this Court should review the award as a question of fact and apply a
clearly erroneous standard of review.
Even accepting the trustees’ framing of the issue, the trial justice was required
to do more than simply find facts. He was required to determine whether § 18-6-1
or § 9-21-10, if applicable, encompassed interest charges, which he did. This was a
question of law that we review de novo. See, e.g., Morse v. Minardi, 208 A.3d 1151,
7
As discussed, the beneficiaries raised this argument during the October 2014 trial;
the trial justice rejected the argument in his May 2017 decision when he determined
which categories of fees to award. Although the beneficiaries attempted to retain
their right to appeal that decision by way of the stipulated order entered in August
2018, as discussed previously, they did not appeal the May 2017 decision to this
Court; thus, they have waived this argument.
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1155 (R.I. 2019). “We review questions of statutory interpretation in a de novo
manner.” Nunes v. Meadowbrook Development Co., Inc., 24 A.3d 539, 542 (R.I.
2011).
In challenging the award of interest as contrary to the law and the facts, the
beneficiaries argue that there is no basis in Rhode Island law for granting interest on
attorneys’ fees; to the extent that the trial justice treated the interest as a “service
charge” under § 18-6-1, they assert that he should have subjected the interest
calculation to the Tri-Town analysis.
Additionally, the beneficiaries argue that because the trial justice awarded fees
as indemnification under § 18-6-1 rather than as damages, interest is not appropriate
under § 9-21-10 or the applicable caselaw. The purpose of prejudgment interest,
according to the beneficiaries, is to “compensate a prevailing party for the loss of
money over time[.]” However, they maintain that there is no loss of the time value
of money here because the attorneys’ fees were not due until the trial justice reached
his decision on the fees.
Finally, the beneficiaries argue that the award was inequitable because it
punished them “for a substantial passage of time that was entirely outside their
control[,]” referring to the time between the trial and the trial justice rendering his
decisions on the fees and interest. In closing, the beneficiaries contend that “[a]t
most, the [t]rustees are entitled to indemnification in accordance with § 18-6-1.
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Neither they nor their counsel are entitled to profit on any such indemnification
award.”
The sole argument raised by the beneficiaries on appeal relative to § 18-6-1 is
that the award of interest should have been subject to the Tri-Town procedure.
Tri-Town requires a non-interested attorney to opine on the reasonableness of
attorneys’ fees and for the opposing side to be given an opportunity for their own
non-interested attorney expert to opine on the same. Tri-Town Construction
Company, Inc., 139 A.3d at 480. However, the issue in the case at bar is the
reasonableness of an expense incurred in the execution of a trust. Interest, even
when charged on attorneys’ fees incurred, falls outside of Tri-Town. Additionally,
we note that the interest rate charged under the retainer agreement in this case was
the same rate as that provided under the prejudgment interest statute and is thus
reasonable as a matter of law.
Furthermore, under our de novo review, we conclude that the trial justice did
not err by awarding interest on attorneys’ fees under § 18-6-1 as a reasonable
expense incurred in the administration of the trust. Section 18-6-1 states, in relevant
part, “Every trustee under any trust instrument, whether previously or subsequently
made, shall be entitled to reasonable expenses and costs incurred in the execution of
the trust, and also reasonable compensation for services rendered as trustee[.]” Bills
incurred by trustees in the administration of a trust, including interest accrued
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through no fault of the trustees, are a reasonable trust expense that is indemnifiable
under § 18-6-1. As the trial justice found in his May 2017 decision, Mr. Voccola
and Mr. Shedd, as trustees, were entitled to reasonable attorneys’ fees in the
administration of the two testamentary trusts at issue in this case. Thus, under our
decision today, they are entitled to the interest on those fees, where, as here, the
trustees were unable to pay the attorneys’ fees as they became due because they no
longer had access to trust assets.
The beneficiaries contend that the way in which the trial justice awarded the
interest under § 18-6-1 deviated from how the interest had been treated until the time
of the decision because the trustees requested prejudgment interest pursuant to
§ 9-21-10. This argument is contradicted by the record. The trustees argued before
the trial justice that they would be entitled to interest under either § 18-6-1 or
§ 9-21-10. In addition, bills submitted to the trial justice for interim payments,
beginning in December 2012, noted the interest rate, as did the affidavit from the
trustees’ attorney expert. Moreover, the trustees specifically raised this issue
following the May 2017 decision, when they objected to the beneficiaries’ motion
for a partial release of the trust funds in escrow.
The beneficiaries’ remaining arguments on appeal relate to interest under
§ 9-21-10. Because we hold that the trial justice properly awarded interest under
§ 18-6-1 as an expense reasonably incurred in the administration of the trust, we
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need not address the beneficiaries’ arguments unrelated to the basis of the trial
justice’s decision.
We take a moment to acknowledge that application of the law to the facts in
this case results in an extraordinarily large sum of interest that must be paid to Duffy
& Sweeney. This is the result of protracted and zealous litigation for which Duffy
& Sweeney was hired in 2012, and for which the law firm extended credit in the
form of forgoing timely payment of its bills in exchange for interest to be paid.
Although the interest figure is large, we cannot, as the old adage states, allow “bad
facts to make bad law.”
Conclusion
For the foregoing reasons, the judgment of the Superior Court is affirmed.
The record may be returned to that tribunal.
Justice Goldberg did not participate.
Justice Robinson, dissenting. I am compelled to record my respectful
dissent to the majority’s well-written and thoughtful opinion in this case which
upholds the amount of attorneys’ fees and interest awarded in the Superior Court.
While I acknowledge that there are powerful arguments that support the result
reached by the majority, it is nonetheless my view that, in light of the staggering
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amount of the attorneys’ fees at issue and bearing in mind the substantial delays in
the course of this litigation that are not attributable solely to the beneficiaries, the
interests of justice would best be served by reducing by more than a de minimis
amount the attorneys’ fees and interest awarded in this case. See In re Estate of
Brown, 206 A.3d 127, 136 (R.I. 2019) (reducing the amount of attorneys’ fees award
by twenty-five percent); Tanner v. Town Council of Town of East Greenwich, 880
A.2d 784, 802 (R.I. 2005) (reducing the amount of the attorneys’ fees and costs to
an amount the Court determined would be “just, fair, and proportional”); see also
Moore v. Ballard, 914 A.2d 487, 489 (R.I. 2007) (invoking this Court’s “inherent
power to fashion an appropriate remedy that would serve the ends of justice”)
(internal quotation marks omitted); Cadillac Lounge, LLC v. City of Providence, 913
A.2d 1039, 1043 (R.I. 2007) (directing the entry of a fine in the amount of $500
rather than remanding the case for further proceedings by the Board “in the interest
of judicial and administrative economy” and by relying upon this Court’s “inherent
power” to do so); see generally Gibbons v. Gibbons, 619 A.2d 432, 434 (R.I. 1993).
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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
Angela Giguere Kumble et al. v. Michael Voccola et
al.
Title of Case
Michael Voccola et al. v. Angela Giguere Kumble et
al.
No. 2019-49-Appeal.
(PB 12-3338)
Case Number
No. 2019-47-Appeal.
(PB 12-3476)
Date Opinion Filed June 30, 2021
Justices Suttell, C.J., Robinson, Lynch Prata, and Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Michael A. Silverstein
For Beneficiaries:
Robert M. Duffy, Esq.
Stacey P. Nakasian, Esq.
Attorney(s) on Appeal
For Trustees:
Mark W. Freel, Esq.
Alan I. Baron, Esq.
SU-CMS-02A (revised June 2020)