Attorney’s fees awarded to both landlord and tenant, although net amount of judgment was against tenant and tenant did not recover on one of two counterclaims

Kwon v. Eaton, et al. (2009-367) (06-Aug-2010) 2010 VT 73 (mem.)

Landlords appeal the Superior Court’s decision to award attorney’s fees to tenants who established a habitability violation. Landlords contend that because they recovered a net judgment of $8,071.50 and tenants did not recover any net sum, landlords alone should be entitled to receive attorney’s fees. We affirm

The plain language of 9 V.S.A. § 4458(a) does not require a tenant to establish that it was “the prevailing party.” Rather, it grants attorney’s fees to a tenant when “the landlord fails to comply with the landlord’s obligations for habitability.” The attorney’s fee award to tenant is supported by the jury’s verdict that landlords violated the warranty of habitability, even though tenant did not recover damages on their consumer fraud claim. The two theories pursued by tenants involved essentially the same operative facts and were overlapping. See Elec. Man, Inc. v. Charos, 2006 VT 16, ¶ 10, 179 Vt. 351, 895 A.2d 193 (attorney’s fee award should not be apportioned based on recovery on each claim when claims at issue share common core of facts); L’Esperance, 2003 VT 43, ¶ 24 (affirming attorney’s fee award for consumer-fraud claim, including time spent on alternative claims, when alternative claims arose out of same transaction).