Evans v. Cote, 2014 VT 104 (29-Aug-2014)
DOOLEY, J. Defendant appeals the superior court’s order concluding that defendant violated 13 V.S.A. § 3701(c) by intentionally knocking down a tree belonging to plaintiff and trespassing on plaintiff’s land, and granting plaintiff $1 in damages plus attorney’s fees and costs. On appeal, defendant argues that plaintiff failed to demonstrate that defendant violated the statute, that nominal damages do not support an award of attorney’s fees, and that the court abused its discretion in awarding attorney’s fees of $22,406 based on $1 of actual damages. We affirm.
Based on its findings that defendant had trespassed on plaintiff’s property and that there was a substantial probability that he would continue to do so, the court granted plaintiff’s request for a permanent injunction. As to damages, the court concluded that the statute of limitations barred any recovery for actions taken prior to August 2002, which was six years before the case was filed. The court found that the sole damage occurring after August 2002 that was supported by the evidence was that in 2008 defendant had “knocked down one dead but standing softwood tree” on plaintiff’s side of the boundary line. The court awarded damages of $1 for the felled tree, explaining that it could not determine the replacement value of a single tree from the evidence presented.
In addition, the court awarded plaintiff attorney’s fees and costs under the unlawful mischief statute. 13 V.S.A. § 3701(f). The court found that the fees requested by plaintiff were reasonable, but that a downward departure was warranted because plaintiff had obtained a poor outcome in comparison to what was sought. Thus, the court made a 75% reduction in the requested amount, and awarded $22,406 in attorney’s fees and costs. Defendant moved to reconsider, arguing that a nominal damage recovery of $1 did not support an award of attorney’s fees under the statute. The court rejected defendant’s argument, concluding that recovery of attorney’s fees is not dependent on obtaining a certain monetary amount of damages.
Defendant has not ordered a transcript of the trial on the merits, and therefore has waived any challenge to sufficiency of the court’s findings. V.R.A.P. 10(b)(1) (explaining that it is appellant’s responsibility to order transcript and appellant “waives the right to raise any issue for which a transcript is necessary for informed appellate review”). Without the transcript, this Court assumes that the trial court’s findings are supported by the evidence.
Defendant has not ordered a transcript of the trial on the merits, and therefore has waived any challenge to sufficiency of the court’s findings. V.R.A.P. 10(b)(1) (explaining that it is appellant’s responsibility to order transcript and appellant “waives the right to raise any issue for which a transcript is necessary for informed appellate review”). Without the transcript, this Court assumes that the trial court’s findings are supported by the evidence.
This brings us to the central issues, whether the statute allows the award of any attorney’s fees where the amount of damages is only nominal and, if so, whether the fee amount is reasonable in light of the compensatory damages award.
The relevant statutory section provides:
We would undermine the Legislature’s purpose in establishing civil liability for damage to property from unlawful mischief, even where the damage is small, if we did not authorize fee shifting in all unlawful mischief cases.
Defendant next argues that a larger than 75% reduction was warranted because of the extremely poor result on plaintiff’s damages claim, and because the court improperly considered plaintiff’s success in obtaining a permanent injunction in awarding fees. Defendant has failed to demonstrate that the award was an abuse of discretion.
The relevant statutory section provides:
A person who, having no right to do so or any reasonable ground to believe that he or she has such right, intentionally does any damage to property of any value not exceeding $250.00 shall be imprisoned for not more than six months or fined not more than $500.00 or both.13 V.S.A. § 3701(c). The statute creates a civil remedy for violations: “A person who suffers damages as a result of a violation of this section may recover those damages together with reasonable attorney’s fees in a civil action under this section.” Id. § 3701(f).
We would undermine the Legislature’s purpose in establishing civil liability for damage to property from unlawful mischief, even where the damage is small, if we did not authorize fee shifting in all unlawful mischief cases.
Defendant next argues that a larger than 75% reduction was warranted because of the extremely poor result on plaintiff’s damages claim, and because the court improperly considered plaintiff’s success in obtaining a permanent injunction in awarding fees. Defendant has failed to demonstrate that the award was an abuse of discretion.
We have explained in the past that it is not whether the attorney’s fee award is proportional to the damages, but “whether the fee award is reasonable given the demands of the case.” Kwon, 2010 VT 73, ¶ 20. The proportionality argument is particularly difficult here since the Legislature has explicitly authorized civil unlawful mischief claims for very small amounts of money where the attorney’s fees and costs are almost certain to greatly exceed the amount of damages recovered.
The court’s decision does not support defendant’s claim that the court improperly considered plaintiff’s success in obtaining a permanent injunction in its analysis of how much to reduce the lodestar amount. Further, the court provided an adequate explanation for its decision to reduce the lodestar figure by 75%.
The court’s decision does not support defendant’s claim that the court improperly considered plaintiff’s success in obtaining a permanent injunction in its analysis of how much to reduce the lodestar amount. Further, the court provided an adequate explanation for its decision to reduce the lodestar figure by 75%.
We reiterate that our review of the court’s decision on the amount of fees is a limited one. “[A]bsent strong evidence of excessiveness,” this Court defers to the trial court’s judgment as to the amount of fees. Human Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 252, 668 A.2d 659, 670 (1995). Defendant has failed to demonstrate that a 75% reduction was an abuse of the court’s discretion.
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