Bell v. White ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 3, 2016 522273
________________________________
JOHN L. BELL, Individually
and as Shareholder of
NORPCO RESTAURANT, INC.
and BUTCHER BLOCK OF
ALBANY, INC., MEMORANDUM AND ORDER
Appellant,
v
DAVID R. WHITE et al.,
Respondents.
________________________________
Calendar Date: September 7, 2016
Before: Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.
__________
Viscardi Howe & Rudgers LLP, Ticonderoga (Michael J. Hutter
of Powers & Santola, LLP, Albany, of counsel), for appellant.
Fenney, Centi & Mackey, Albany (Daniel J. Centi of
counsel), for respondents.
__________
Peters, P.J.
Appeals (1) from an amended order of the Supreme Court
(Tomlinson, J.), entered February 12, 2015 in Albany County,
which awarded counsel fees to defendant, and (2) from the
judgment entered thereon.
The facts of this protracted litigation have been fully
articulated in three previous decisions of this Court (112 AD3d
1104 [2013], lv dismissed 23 NY3d 984 [2014]; 77 AD3d 1241
[2010], lv dismissed 16 NY3d 888 [2011]; 55 AD3d 1211 [2008]) and
will not be repeated here at length. Over a decade ago, the
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parties entered into a stipulation of settlement that required
defendant David R. White to purchase plaintiff's shares of
defendant Norpco Restaurant, Inc. Plaintiff thereafter
unsuccessfully attempted, on more than one occasion, to set aside
the stipulation and Supreme Court granted defendants' motion to
enforce it. When plaintiff's noncompliance with the stipulation
persisted, he was twice found in contempt and ordered to pay
counsel fees to defendants. Upon appeal, we upheld both the
enforcement and contempt orders (55 AD3d at 1214-1215).
Thereafter, Supreme Court entered an order awarding defendants
counsel fees for legal services performed between June 2007 and
July 2009. This Court affirmed the scope of the fee award but,
concluding that plaintiff was denied the opportunity to request a
hearing on the reasonableness of the underlying fees, we remitted
the matter for such a hearing (77 AD3d at 1245). Following a
hearing in October 2011, Supreme Court awarded counsel fees in
the amount of $80,896.79. We affirmed on appeal (112 AD3d at
1105).
Defendants thereafter moved for an award of additional
counsel fees for services rendered since the prior award,
including, among other things, fees incurred in connection with
the October 2011 hearing and in defending against plaintiff's
various attacks upon the prior award. After a hearing, Supreme
Court issued a comprehensive order that carefully assessed the
factors relevant to the reasonableness of the fee request and
awarded counsel fees of $28,149.35, in addition to the sums
previously ordered. This appeal by plaintiff ensued.
We affirm. "Counsel fees that are documented and directly
related to contemptuous conduct are generally recoverable unless
proven excessive or reduced in a court's reasoned decision"
(Matter of Evans v Board of Assessment Review of Town of
Catskill, 300 AD2d 768, 768-769 [2002] [citations omitted]; see
Judiciary Law § 773; Hamilton v Murphy, 100 AD3d 1235, 1236
[2012]). Here, the invoices submitted by defendants, taken
together with counsel's detailed testimony at the hearing,
sufficiently particularized the costs incurred in connection with
the continued litigation of the counsel fee award and in
defending appeals, applications and motions related thereto, all
of which flowed directly from plaintiff's contemptuous actions
-3- 522273
(see Hamilton v Murphy, 100 AD3d at 1236-1237; Bell v White, 77
AD3d at 1245; Matter of Lembo v Mayendia-Valdes, 293 AD2d 789,
790 [2002]). Supreme Court found the documented fees to be fair
and reasonable for the services rendered by defendants' attorney
and, as plaintiff presented no evidence at the hearing to suggest
otherwise, we find no basis upon which to disturb the award (see
Bell v White, 112 AD3d at 1105; Matter of Lembo v Mayendia-
Valdes, 293 AD2d at 790-791; Matter of Daniels v Guntert, 256
AD2d 940, 943 [1998]). Plaintiff's remaining challenges to the
counsel fee award are lacking in merit.
Finally, plaintiff continues his attack upon the validity
of the underlying stipulation of settlement and the finding of
civil contempt. We again remind plaintiff – as we did when this
matter was last before us – that these issues have been squarely
resolved by this Court in a prior appeal. Accordingly,
plaintiff's continuing arguments on those points are barred by
the law of the case doctrine "and, despite his protestations, we
perceive no legitimate basis upon which to revisit them" (Bell v
White, 112 AD3d at 1105; see Beneke v Town of Santa Clara, 45
AD3d 1164, 1165 [2007], lv denied 10 NY3d 706 [2008]; Shawangunk
Conservancy v Fink, 305 AD2d 902, 903 [2003]).
McCarthy, Garry, Rose and Mulvey, JJ., concur.
ORDERED that the amended order and judgment are affirmed,
with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court