SCOVT reverses and enters summary judgment in favor of employee’s attorney, holding that payment by insurer to employee’s attorney as part of settlement of employee's personal-injury lawsuit against employer was not a “common fund,” such that the law of unjust enrichment requires employee’s attorney to contribute to employer’s attorney’s fees incurred in a separate suit concerning insurance coverage for employee’s claim.)

 

WWSAF Special Partners Group, LLC v. Costello, Valente & Gentry, P.C., 2025 VT 40 [7/18/2025]

CARROLL, J.   This case involves a dispute between two law firms over attorney’s fees in separate litigation.  As relevant to this appeal, plaintiff Gravel & Shea PC sued defendant Costello, Valente & Gentry, P.C., claiming defendant was unjustly enriched for receiving attorney’s fees without compensating plaintiff for the work plaintiff did to procure a settlement from which defendant received its fees.  Defendant appeals a trial court order granting summary judgment that defendant contribute to plaintiff’s attorney’s fees under the common-fund doctrine. We agree with defendant that the trial court improperly expanded the common-fund doctrine to apply to this case and thus reverse the court’s order granting summary judgment to plaintiff and remand for the court to enter summary judgment in favor of defendant. 

 

The trial court granted summary judgment to plaintiff because defendant benefited from legal work plaintiff did that led to a settlement from which defendant received its fees, concluding that equities entitled plaintiff to a portion of defendant’s fees under the common-fund doctrine. The court reasoned that although defendant’s client (employee) was not a party to employer’s lawsuit concerning insurance coverage, defendant would not have obtained fees from a settlement with an insurer in a separate suit by the employee but for plaintiff’s attorney’s efforts representing the employer.

 

This Court applied the common-fund doctrine for the first and only time in Guiel v. Allstate Ins. Co., 170 Vt. 464, 468 (2000).In general, the common-fund doctrine allows a prevailing party—whose lawsuit has created a fund that is intended to benefit not only that party but others as well—to recover, either from the fund itself or directly from those others enjoying the benefit, a proportional share of the attorney’s fees and costs incurred in the lawsuit.   Guiel, 170 Vt. at 468

 

The common-fund doctrine arises out of the equitable theory of unjust enrichment. The threshold issue on appeal is whether the common-fund doctrine applies in this case and thus whether the court could award attorney’s fees to plaintiffs under this theory.

 

In Guiel, we held the common fund doctrine may be applied to require an insurer to pay a proportionate share of the attorney’s fees incurred by its insured in obtaining a judgment or settlement that satisfies the insurer’s subrogated interest. We decline to extend the common-fund doctrine beyond the insurance subrogation context to the circumstances before us here because there is no common fund.

 

The common-fund doctrine as an exception to the American Rule in which fees are awarded not, as in a ‘prevailing party’ case, to make the plaintiff whole by shifting all costs to the wrongdoer, but instead to spread the costs among those on whose behalf the case was brought and who benefitted from plaintiff’s efforts. Whether the doctrine applies in a particular case is not determined by a label, but rather by a proper understanding of the doctrine and its limitations. The doctrine is not limited to the context of class actions, insurance subrogation cases, or any type of case.  Guiel, 170 Vt. at 470, 756 A.2d at 781 (noting it depends on whether “it is equitable to do so because of the facts of the particular case at hand” and “the nature and extent of the [beneficiary’s] activities”).

 

The common fund doctrine is limited, however, to cases in which a party has “successfully created a ‘common fund.’”  Robes v. Town of Hartford, 161 Vt. 187,199 (1993).. Savoie v. Merchs. Bank, 84 F.3d 52, 56 (2d Cir. 1996) (The doctrine does not apply if “the fee award would not come from a common fund.”)

 

A common fund, as defined by the Restatement, is a fund that “consists of money or other property in which two or more persons (the ‘beneficiaries’) are entitled to share by reason of their common or parallel interests therein.”  Restatement (Third) of Restitution & Unjust Enrichment § 29(1).

 

Here, plaintiff argues that it should be awarded fees for the work it did for its client in one case, that benefitted the attorney of its client’s adversary in another.  Notwithstanding any benefit conferred on defendant, the common-fund doctrine cannot apply.  The client  on whose behalf plaintiff was acting, was not a beneficiary to the settlement proceeds or the fund from which plaintiff seeks compensation.  Plaintiff’s efforts on behalf of its client have not created a common fund.

 

Accordingly, plaintiff cannot maintain an unjust-enrichment claim as a matter of law under these facts.  We thus reverse the court’s order granting summary judgment to plaintiff and remand for the court to enter summary judgment in favor of defendant.

 

Reversed and remanded for the trial court to enter summary judgment in favor of defendant.

SCOVT affirms dismissal of defamation and emotional distress claims, holding an alleged false report to police was absolutely privileged, and that trial court correctly ruled the anti-SLAPP statute applies, but remands for evaluation of plaintiff’s constitutional challenge that attorney fee award under anti-SLAPP statute deprives him of his right to a remedy under Article 4, to a jury trial under Article 12, and impermissibly burdens his attempt to exercise his rights to free speech and petition the court)

 Talandar v.  Manchester-Murphy, 2024 VT 86 [12/20/2024]

CARROLL, J.   Plaintiff Draxxion Talandar appeals from a civil division order granting judgment on the pleadings to defendant Elizabeth Manchester-Murphy and awarding her attorney’s fees under Vermont’s anti-SLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041.  In his complaint, plaintiff raised claims of defamation and intentional infliction of emotional distress (IIED), alleging that defendant maliciously made a false report of sexual and physical assault to the police that resulted in plaintiff being criminally charged, arrested, and held without bail for almost two years before his ultimate acquittal.  On appeal, plaintiff argues that the trial court erred in: (1) concluding that his claims were barred by a common-law absolute privilege for witness communications preliminary to a proposed judicial proceeding and therefore entering judgment on the pleadings; and (2) granting defendant’s special motion to strike his complaint under § 1041(a).  We agree that defendant’s police report was absolutely privileged and thus affirm the trial court’s grant of judgment on the pleadings.  While we conclude that plaintiff’s challenges to the court’s interpretation of 12 V.S.A. § 1041 are without merit, we remand for the court to consider plaintiff’s unaddressed constitutional challenges to that statute.

***

Finally, plaintiff contends that applying the  anti-SLAPP statute applies to his suit  unconstitutionally deprives him of his right to a remedy under Article 4 and to a jury trial under Article 12, and the compulsory fee award impermissibly burdens his attempt to exercise his rights to free speech and petition the court.  See Vt. Const. ch. I, arts. 4, 12. The trial court failed to meaningfully engage these arguments when plaintiff raised them below, instead observing that the anti-SLAPP statute already represented a legislative balancing of the conflicting constitutional rights at issue.  This does not answer plaintiff’s argument, and we decline to address these contentions for the first time on appeal, and therefore remand to the trial court for the purpose of considering plaintiff’s constitutional challenges to the anti-SLAPP statute. 

 

The trial court’s entry of judgment on the pleadings is affirmed.  Its ruling on defendant’s special motion to strike is affirmed in part but remanded for evaluation of plaintiff’s constitutional challenges to the anti-SLAPP statute.

SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

Legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim

Massucco v. Kolodziej, 2024 VT 76 (filed 11/27/2024) (Affirms orders reforming deed and finding slander of title, holding as a matter of first impression that legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.)

WAPLES, J.   Defendants James and Barbara Kolodziej discovered that a parcel of land near their property was seemingly omitted from plaintiff Sarah Massucco’s deed.  They arranged for the heirs of a previous owner of the land to deed that parcel to them.  Defendants neither talked to plaintiff—who they saw use the parcel—nor confirmed that the heirs owned the parcel.  After recording their own deed, defendants informed plaintiff that they owned the parcel and asked her to remove her belongings.  Plaintiff sued.  The trial court granted plaintiff’s claim for deed reformation on summary judgment and concluded Mr. Kolodziej slandered plaintiff’s title after a bench trial.  Defendants appeal and we affirm. 

To reform her deed, plaintiff must demonstrate, beyond a reasonable doubt, that the deed fails to express the real agreement between seller and buyer due to a mutual mistake in reducing the agreement to writing.  Cassani v. Hale, 2010 VT 8, ¶ 17, 187 Vt. 336, 993 A.2d 422.  “Mutual mistake is shown if the evidence establishes that the seller intended to sell and the buyer intended to purchase a different piece of land than that described in the deed.”  LaRock v. Hill, 131 Vt. 528, 530, 310 A.2d 124, 126 (1973).  The court may reform a deed to what “the deed and extrinsic evidence indicate [the parties] must have intended.”  Cassani, 2010 VT 8, ¶ 19.  “Intent is rarely proved by direct evidence; it must be inferred from a person’s acts and proved by circumstantial evidence.”  State v. Langdell, 2009 VT 125, ¶ 9, 187 Vt. 576, 989 A.2d 556 (mem.) (quotation omitted).

 

 Defendants contend that the language of the Leisey deed precludes summary judgment. But  Plaintiff does not dispute that the Leisey deed facially omitted the disputed parcel.  Her claim is that the deed does not reflect the true agreement between the Adamses and Mr. Leisey.  The undisputed text of the deed alone does not bar a grant of summary judgment on a reformation claim.

 Even if Mr. Leisey was hazy on the specific details of the parcel’s boundary the facts set forth by defendants do not create a genuine dispute of fact for trial.  The unrefuted deposition testimony demonstrated that the Adamses intended to convey their whole remaining parcel to Mr. Leisey, Without any disputed material facts presented, the trial court appropriately granted summary judgment on plaintiff’s claim for reformation of the Leisey deed and the deeds in her line of title. 

To prove slander of title, plaintiff must show that: (1) she has a “transferrable ownership interest capable of disparagement,” (2) defendants published a false statement concerning plaintiff’s title; (3) defendants acted with malice, and (4) the statement caused special damages.  Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11, 189 Vt. 442, 23 A.3d 663.[1] ‘The essence of the tort is the publication of an assertion that is derogatory to the plaintiff’s title to property in an effort to prevent others from dealing with the plaintiff.”  Id. ¶ 8 (quoting Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem.)).[2]

 

(1)

 

There is a split among the states as to whether land acquired through adverse possession can support a slander-of title claim. We conclude that title by adverse possession “is a sufficient interest in property for a claimant to maintain an action for slander of title.”  Colquhoun v. Webber, 684 A.2d 405, 409-10 (Me. 1996). In Colquhoun, the Maine Supreme Judicial Court looked to the Restatement (Second) of Torts, which provides that a legally protected interest in land “may be disparaged if the interest is transferable.” . Restatement (Second) of Torts § 624 cmt. c (1977).  Because in Maine an adverse possessor has good title after having met the requirements for adverse possession, that title can sustain a slander-of-title claim even before judicial confirmation of the title.  Colquhoun, 684 A.2d at 410.  We hold the same here.  .  Plaintiff thus had the title necessary to sustain her slander-of-title claim, even before the court order reforming the Leisey deed becomes final. 

(2)

The trial court concluded that the recording of the deed constituted publication of a false statement concerning plaintiff’s title.  We agree.  By recording a deed that amounted to a false claim of ownership of the disputed parcel, Mr. Kolodziej published a false statement concerning plaintiff’s title.

(3)

Malice in a slander-of-title action requires “conduct manifesting personal ill will, evidencing insult or oppression, or showing a reckless or wanton disregard of plaintiff’s rights.”  Though the court found that Mr. Kolodziej “did not have personal ill will” towards plaintiff, he “acted with reckless disregard of the possibility that she had a claim to the disputed property.”  --The undisputed evidence demonstrates that Mr. Kolodziej located a parcel of land where the deeds in the land records did not comport with town maps or with plaintiff’s usage of the land.  He then arranged to have the parcel deeded to himself and his wife without speaking to the person who he saw had been using the.This evinces a “reckless disregard” for plaintiff’s rights.. The trial court applied the correct legal standard, and we see no error in the conclusions it drew.

(4)

We have never clarified what might constitute special damages for a slander-oftitle claim in Vermont.  We have affirmed dismissal of a claim of slander of title for lack of evidence tying “any damages to the alleged slander.”  Gardner v. West-Col, Inc., 136 Vt. 381, 387, (1978) .  We have also squarely held that pecuniary losses from a lost sale of the property at issue suffice to establish special damages.  Wharton, 2003 VT 19, ¶¶ 15, 18.  We must now decide whether evidence of damages in the form of legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.  We conclude that they are.

Fees expended in prosecuting the slander-of-title action are not recoverable as special damages in that action, but the costs of actions taken to clear a plaintiff’s title and such other expenses that are reasonably necessary to counteract the disparagement” constitute “special damages for which the tortfeasor should bear liability.

 

We affirm the trial court’s grant of summary judgment to plaintiff on her claim for reformation of the deeds in her line of title.  We further conclude that her reformed deed relates back to the grant of the original deed, and that plaintiff’s interest in the disputed parcel can sustain her slander-of -title claim even before judicial confirmation of the deed reformation becomes final.  Finally, we conclude that attorney’s fees and costs expended in clearing her clouded title constitute the special damages necessary to sustain plaintiff’s slander-of-title claim.  

Affirmed. 

---

SCOVT NOTEs Re Elements of Slander of Title in Vermont precedent:

[1] Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11 (“To prove slander of title, plaintiff must show that: (1) defendants published a false statement concerning plaintiff's title; (2) the statement caused special damages; and (3) defendants acted with malice. Wharton v. Tri-State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem._) . . . Whether a statement concerns a person's title revolves around whether it affects that person's ability to make deals with others regarding the property disparaged. Wharton, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531. In other words, one claiming slander of title must have a transferrable ownership interest capable of disparagement. Restatement (Second) of Torts § 624 cmt. c ("Any kind of legally protected interest in land, chattels or intangible things may be disparaged if the interest is transferable and therefore salable or otherwise capable of profitable disposal.").)

 

[2] Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14(“The elements of slander of title as a cause of action have not been clearly laid out in Vermont. The tort has been recognized by this Court, however, first in a nineteenth century case in which we declared that we had jurisdiction over claims for slander of title, Sherman v. Champlain Transportation Co., 31 Vt. 162 (1858), and next in a more recent case where we held that an essential element of the cause of action for slander of title is special damages. Gardner v. West-Col, Inc., 136 Vt. 381, 387, 392 A.2d 383, 386 (1978). The essence of the tort is the publication of an assertion that is derogatory to the plaintiff's title to property in an effort to prevent others from dealing with the plaintiff. See Prosser and Keeton on Torts § 128, at 967 (5th ed.1984). To prove slander of title, a plaintiff must prove that a defendant falsely published a statement concerning plaintiff's title that caused special damages to the plaintiff and that defendant acted with malice. Restatement (Second) of Torts §§ 623A, 624 (1977)”)

Appeals. Attorney's fees. SCOVT vacates civil division order in attempted appeal from a probate order that was not appealable because question of attorney’s fees remained to be decided in probate court; Supreme Court has no jurisdiction where there was no jurisdiction below.

 In re Estate of Miriam Thomas, 2022 VT 59 (filed 11/11/2022)

CARROLL, J. Estate appeals the civil division’s order granting former guardian’s motion to dismiss a decision of the probate division. The probate division ordered guardian to reimburse his mother’s estate for what it described as damages incurred during his tenure as her financial guardian. However, the civil division did not have subject-matter jurisdiction because the probate division’s order was not a final order. Accordingly, we vacate the civil division’s order and remand to the probate division for further proceedings.

A necessary predicate for appellate jurisdiction is the order appealed from must be a final order. An order is final if the decree or judgment disposed of all matters that should or could properly be settled at the time and in the proceeding then before the court.

Here, the probate division in ordering reimbursement expressly did not issue a final judgment order, but provided that one would follow its final determination of fees and costs against the Guardian. It set a two-month schedule for the parties to produce evidence on the matter.

We have held that an appeal from an order that resolves attorney’s fees is an appeal from final judgment that brings up on appeal all d substantive issues in the case that were earlier decided. O’Rourke v. Lunde, 2014 VT 88, ¶¶ 13-15, 197 Vt. 360, 104 A.3d 92 (earlier order confirming an arbitration award was properly before the Court on appeal because the later order was “a final judgment [that] it resolved all issues in the case, including the amounts of attorney’s fees” ) Here the order appealed was not a final, appealable order because it expressly left issues to be decided before issuing a final judgment order; it did not dispose “of all matters that should or could” have been properly settled “at the time and in the proceeding then before the court.”

No exception applies. This Court has “frequently treated probate orders as final even where they did not dispose of the entire probate proceeding,” because the “proceedings are frequently lengthy and involve a series of decisions on discrete issues that may be appropriate for immediate review.” Palmer Trust, 2018 VT 134. Palmer held that a probate order that determined whether a particular individual 6 was an heir and beneficiary to a trust was a final, appealable order. Palmer and cases collect in Palmer are distinguishable. These cases Involved a “discreet issue[]”“ or ‘controlling, intermediate decisions’ that where immediate review could correct an error that “‘can harm later phases of the proceeding,’ ” No harm is done to any party by requiring the probate division to determine fees and costs and issue a final judgment order.

Subject-matter jurisdiction either exists or it does not, and where it does not, we must proceed no further. Vermont Rule of Appellate Procedure does not provide an alternative path to reach matters over which this Court has no subject-matter jurisdiction.

The order granting Thomas’s motion to dismiss is vacated and the matter is remanded to the probate division to determine reasonable attorney’s fees and costs and issue a final judgment order.

How cited

SCOVT NOTE Probate Rules 54 and 58, unlike the Vermont and federal civil rules, contain no provision expressly addressing the effect of a request for attroney’s fees on the appealability of a judgment on the merits. See VRCP 58(c) (“when a timely motion for attorneys' fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4 of the Vermont Rules of Appellate Procedure as a timely motion under Rule 59).

SCOVT affirms SLAPP orders striking invasion of privacy claim; reverses trial court refusal to award attorney fees paid by insurer.

Cornelius v. Chronicle, Inc.,2019 VT 4 [filed 1/25/2019]

REIBER, C.J. These consolidated cases raise issues concerning Vermont’s anti-SLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041. Plaintiff Garrett Cornelius filed suit alleging invasion of privacy by newspaper, the Chronicle, after newspaper published two articles containing information about plaintiff. In a series of orders, the trial court granted newspaper’s motions to strike the claims under the anti-SLAPP statute and awarded newspaper a small fraction of the attorney’s fees it sought. Plaintiff appeals the court’s orders striking his claims and newspaper appeals the amount of attorney’s fees. We conclude that the claims were properly stricken under the anti-SLAPP statute and that the court erred in limiting the attorney’s fees award. Therefore, we affirm in part and reverse and remand in part.

The award of fees is mandatory when a motion to strike is granted.  The court erroneously reasoned that because newspaper’s insurer was paying the bulk of the fee, newspaper was entitled only to an award for what it paid out of pocket. Courts from Massachusetts and California—states whose anti-SLAPP statutes were used as models for the Vermont statute—agree that attorney’s fees should be granted regardless of whether the fees are paid for by insurance or a third party. See Felis, ¶ 31 (explaining that Vermont statute was based on California statute and contains language from Massachusetts statute). We conclude that the court improperly limited the attorney’s fees to the insurance deductible. The orders striking plaintiff’s complaint are affirmed. The order regarding attorney’s fees is reversed and remanded for further proceedings consistent with this decision.

How cited

Attorney’s-fee-shifting provision of public record act does not authorize award to prevailing self – represented litigant, even if he is an attorney.

Toensing v. AttorneyGeneral Of Vermont, 2019 VT 30 [filed 4/26/2019]

CARROLL, J. In this appeal, we address whether plaintiff, a substantially prevailing self-represented litigant in a case brought under the Vermont Access to Public Records Act (PRA), is entitled to attorney’s fees because he is an attorney. The civil division of the superior court denied plaintiff’s request for attorney’s fees. On appeal, plaintiff argues that he is entitled to attorney’s fees based on the plain language of the relevant PRA provision, the purpose of the Act, and the public policy underlying the Act. We join the vast majority of jurisdictions construing similar acts in concluding that the PRA’s plain language and purpose foreclose granting attorney’s fees to substantially prevailing self-represented litigants, regardless of whether they happen to be attorneys. Accordingly, we affirm the superior court’s decision

1 V.S.A. § 319(d)(1), provides that “the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this 3 section in which the complainant has substantially prevailed.”

The key terms in § 319(d)(1) are defined in Black’s Law Dictionary as follows. Attorney’s fee is “[t]he charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee.” Black’s Law Dictionary (10th ed. 2014).

We do not find persuasive plaintiff’s contention that public policy favors awarding attorney’s fees to self-represented attorneys in PRA cases. The analysis of many courts in other jurisdictions construing fee provisions in public record laws stems from Kay v. Ehrler, 499 U.S. 432 (1991). In that case, the U.S. Supreme Court held that self-represented attorneys, like all other self-represented litigants, cannot recover attorney’s fees under the Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988, Since Kay, virtually all federal and state courts construing attorney’s fee provisions in public records laws have held that prevailing self-represented attorneys are not entitled to attorney’s fees, based both on the obvious common definitions of the words “attorney” and “fee,” as well as the policy considerations discussed in Kay.

Cases awarding fees to self - represented litigants are distinguishable as involving attorneys attempting to collect fees from former clients or defending against frivolous lawsuits, or Rule 11  similar violations.

The policy underlying the PRA’s fee provision, as other courts have found with respect to their comparable fee provisions, is not to reward successful litigants or punish recalcitrant agencies,6 but rather to encourage objectively well-informed, meritorious claims by awarding mandatory or permissive attorney’s fees, depending on the agencies’ response to the requests, to defray the cost of incurring those fees needed to obtain public records.

In short, we discern no basis, either in the language of § 319(d) itself or the public policy underlying the PRA, to interpret the fee provision to grant attorney’s fees to self-represented attorneys, but not to other self-represented litigants.

Legal malpractice. Causation proved as a matter of law. Attorney's fees not recoverable.

Sachs v. Downs Rachlin Martin PLLC  . 2017 VT 100 [filed 10/20/2017]

SKOGLUND, J. After a bench trial, the trial court concluded that defendant attorney’s failure to adequately inform plaintiff of the risks of delay in filing a parentage action “negligently fell short of the standard of reasonably competent legal representation.”The trial court also determined that plaintiff failed to demonstrate direct causation or measurable damages as a result of defendant’s negligent advice. On appeal, plaintiff challenges the court’s legal conclusions and contends that the court’s factual findings established both causation and damages. We agree, and so reverse.

Following a bench trial, the court determined that plaintiff failed to prove the negligent representation was a “cause-in-fact” of plaintiff’s injury and that the evidence was “equivocal” as to whether plaintiff would have decided to file immediately had she been aware of the risk. It also found insufficient evidence for nonspeculative monetary damages.

Based on factual findings made by the trial court, we conclude that plaintiff met her burden to prove that, but for defendant’s negligence advice, she would not have delayed filing. To be clear, we do not hold that the trial court’s factual findings were clearly erroneous. We do not disagree with the sufficiency of the court’s factual findings in any respect. Rather, we conclude that those findings lead inescapably to the legal conclusion that plaintiff established causation by a preponderance of the evidence. Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208 (2007) (noting causation “may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way”)

More importantly, the alternate theory of causation advanced by defendant and apparently adopted by the trial court is not the standard for determining causation-in-fact. The trial court concluded that “[p]laintiff has not demonstrated that she likely would have made any different decision, even if properly advised of the risks of losing support.” This was not a correct statement of the law. Plaintiff merely needed to prove by a preponderance of the evidence that but for defendant’s negligence, plaintiff would not have suffered harm. Id. That is a standard plaintiff satisfied here. We remand for the court to calculate the damages.

In addition to damages, plaintiff seeks attorney’s fees she spent pursuing her malpractice action against defendant. We conclude that the American Rule prevails in this case, and therefore, each party bears its own attorney’s fees.

Reversed and remanded for calculation of damages.

CARROLL, J., dissenting. I agree with the majority that the trial court did not use the correct legal standard for causation. However, the court applied a standard more deferential to plaintiff and the factual findings made by the trial court support the conclusion that plaintiff failed to prove by a preponderance of the evidence that she would have filed her parentage complaint sooner if she had been given accurate advice concerning child support.

When defendant informed plaintiff that there were important strategic advantages in remaining out of court for at least a year and that threats to contest custody are sometimes made as negotiating ploys to limit child support, plaintiff felt that this was a “terrifying prospect.” Plaintiff also testified that a delay in filing would allow her to “enjoy the time with [her] daughter and bond with her and have that time together without contentious litigation at the forefront of it all.” She described this as a “win/win” situation. The record supports a conclusion that plaintiff failed to demonstrate that “but for” the erroneous advice concerning child support, she would have filed her parentage complaint sooner. For this reason, I respectfully dissent. I am authorized to state that Judge Harris joins this dissent.

Attorney’s fees. Award of attorney's fees for public health enforcement was not authorized by statute nor warranted under an equitable exception to the American Rule.

Town of Milton Board of Health v. Brisson, 2016 VT 56 (filed May 6, 2016).

SKOGLUND, J. The Town of Milton successfully brought an action to enforce a town order requiring defendant to remediate problems with his residence that constituted a public health hazard. Defendant does not contest either the civil penalty or the compensatory costs for engineering fees assessed against him by the court, but contends that the court's award of attorney's fees was neither authorized under the applicable statute nor warranted under an equitable exception to the American Rule requiring each party to bear the cost of its own attorney's fees. We agree and therefore vacate the attorney's fee award.

The provision at issue in this case is 18 V.S.A. § 130(b)(5), which provides that the court may order "reimbursement from any person who caused government expenditures for the investigation and mitigation of the public health risk or the investigation, abatement, or removal of public health hazards." Id. § 130(b)(5). The Town argues that the plain meaning of the term "governmental expenditures" in § 130(b)(5) encompasses its attorney's fees incurred in its enforcement action against defendant. We disagree.

Attorney’s fees are a unique type of expense that is subject to special rules and treatment. Generally, when the Legislature has intended to authorize the award of attorney's fees in a particular action—beyond that permitted under the common law—it has done so explicitly. The American Rule disallows attorney's fees absent an express statutory authorization. Accordingly, we hold that § 130(b)(5) does not authorize the superior court to award attorney's fees as part of the reimbursement allowed therein.

The Town also argues that even if § 130(b)(5) does not authorize an award of attorney's fees, the superior court acted within its discretion in awarding the fees in the alternative based on an equitable exception to the American Rule. Again, we disagree.

The equitable power to award attorney's fees as an exception to the American Rule "must be exercised with cautious restraint . . . only in those exceptional cases where justice demands an award of attorney's fees." This is not a case where the interests of justice demanded an award of attorney's fees. The court made no finding of bad faith or of vexatious or wanton conduct on the part of defendant.

DOOLEY, J., dissenting. Because attorney's fees plainly fall within the statutory language allowing recovery of expenditures incurred in the enforcement of public health orders and because an award of such fees is in keeping with the statute's overall remedial purpose, I would hold that the statute allows recovery of the attorney's fees requested in this case, and affirm. I dissent from the majority's holding to the contrary.

The majority ignores a relevant line of cases beginning with Key Tronic Corp. v. United States, 511 U.S. 809, 811 (1994), (addresing the availability of attorney's fees for private plaintiffs, as part of pollution “response costs”). See also United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998)(addressing whether government agency can recovery attorney’s fees as part of s remediation expenses) To the extent we look to persuasive authority to decide this case, we should follow Chapman and Key Tronic. I am authorized to state that Justice Eaton joins this dissent.

Lost profits not proved by evidence of lost revenue. Blocking access was sufficiently unreasonable and substantial to be a nuisance. Threat to drive up litigation costs was sufficient “malice” to support punitive damages, even if there was no “ill will.”

Post and Beam Equity Group, LLC  v. Sunne Village Development Property Owners Association, 2015 VT 60 [Filed May 15, 2015.]

ROBINSON, J.   This case involves a dispute concerning access to property over a subdivision roadway.  Defendant property owners’ association  appeals a judgment for compensatory and punitive damages and for attorney’s fees awarded for a nuisance affecting the Plaintiff P&B’s restaurant.  We affirm the judgment for P&B on its nuisance claim; uphold the award of punitive damages and attorney's fees; but reverse the award of compensatory damages because of the lack of evidence to support the award.

Nuisance. A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. To prove a nuisance, plaintiffs must demonstrate an interference with the use and enjoyment of another's property that is both unreasonable and substantial. An intentional invasion of another's interest in the use and enjoyment of land is “unreasonable” if the gravity of the harm outweighs the utility of the actor's conduct. The standard for determining whether a particular type of interference is “substantial” is that of definite offensiveness, inconvenience or annoyance to the normal person in the community.

The Association installed a guardrail that prevented access to P&B's property from Sunne Village Lane. The Association also put up numerous "Private Lane—Residents Only" signs. Ample evidence supports the court's findings that the blockade caused difficulties for vehicles (especially those towing trailers with snowmobiles), leading to complaints by patrons and lost business and revenue. The erection of the guardrails occurred without warning and just prior to the ski season, which was the busiest time of year for the restaurants. Given these facts, we have no difficulty in upholding the trial court's determination that the level of the Association's interference with P&B's use and enjoyment of its land was sufficiently unreasonable and substantial to be a nuisance.

Punitive damages. The requisite degree of actual malice to support punitive damages may be shown by conduct manifesting personal ill will or carried out under circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton disregard of one's rights. The trial court concluded that the Association’s board engaged in intentional, unreasonable, bad-faith, and malicious behavior, supporting an award of punitive damages in the amount of $5000. This behavior included insinuating that the Association would drive up litigation costs if P&B did not agree to meet various demands  

The Association argues here that the findings of malice are not supported by the evidence and  that there was no "evidence of personal animus."   Even if the POA lacked any "personal animus" toward P&B, this would not preclude an award of punitive damages, because conduct that is not based upon personal hatred or dislike may nevertheless be malicious—it may be insulting or oppressive, or carried out with reckless or wanton disregard of another's rights.  The findings were sufficient to support the conclusion that the Association’s actions in this case evidenced insult or oppression or were carried out in reckless or wanton disregard of P&B's rights.

Attorney’s fees. The court made this award under 27A V.S.A. § 4-117(a), the fee-shifting provision of the VCIOA, which provides that "[a] declarant, association, unit owner, or any other person subject to this title may bring an action to enforce a right granted or obligation imposed by this title, the declaration, or the bylaws. The court may award reasonable attorney fees and costs."  The Association challenged the claimed attorney's fees, arguing that any legal fees incurred on common-law claims were distinct from the VCIOA claims to which the fee-shifting statute applies. On appeal the Association argues that P&B's VCIOA claims do not revolve around a common core of facts with the common-law claims. We acknowledge that this is a close case, but conclude that the trial court did not abuse its discretion in determining that most of the evidence presented was relevant to all claims.

Compensatory damages. We agree with the Association that the evidence of lost revenues relied upon by the trial court cannot support its finding concerning lost profits.  The trial court here compared P&B's patronage after the Association placed the guardrail across the entrance with P&B's patronage during a comparable period the prior year. But without evidence of the impact of the reduction in patronage on P&B's costs, the court could not reliably quantify the lost profits. We simply do not know what costs, if any, P&B was able to avoid as a result of the drop in covers. On this record, any leap from lost revenues to lost profits is necessarily speculative.  P&B's evidence need not have established its fixed and avoidable costs with "mathematical exactness," but P&B was required to present sufficient evidence to support a reasonable determination of its lost profits. In this case, P&B did not present even generalized evidence that its costs remained stable during the period in question.

Note: It is puzzling, probably because of a failure of advocacy, that the Court did not cite or apply the new punitive damage standards regarding reprehensibility and recklessness announced in Fly Fish Vermont v. Chapin Hill Estates, 2010 VT 33 (Burgess, J.)

Attorney’s fees not excessive. Statutory civil remedy for unlawful mischief permits award of attorneys fees though only nominal damages are awarded.

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. 

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:

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%. 

 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.

Attorney’s fees. Who prevailed? "Buckhannon" test rejected; “catalyst” theory applied.

 Bonanno v. Verizon Business Network Systems 2014 VT 24 (28-Feb-2014)

REIBER, C.J. Plaintiff appeals from the superior court’s grant of summary judgment against him and in favor of his employer on claims stemming from an alleged breach of a settlement agreement with employer regarding his workers’ compensation claim. On appeal, plaintiff contends that the trial court abused its discretion by awarding inadequate attorneys’ fees. Employer cross-appeals and argues that the trial court abused in its discretion by awarding any attorneys’ fees. We affirm the trial court in all respects.

Here, the relevant statutory provision is 21 V.S.A. § 675(a). The key question faced by the trial court was whether plaintiff “prevail[ed]” on his claim for purposes of the statute. The court found that plaintiff did prevail on his claim that defendants had improperly failed to pay plaintiff’s medical bill because defendants “ultimately agreed to pay the medical bill while the litigation was pending.”

Defendants argue that plaintiff did not obtain judicial relief from the court and thus was not entitled to any fees or costs. Defendants argue that this Court should adopt the U.S. Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), that eligibility for attorneys’ fees requires a “material alteration of the legal relationship of the parties” effectuated by court action, such as an enforceable judgment on the merits. Id. at 604-05 (quotation omitted). The U.S. Supreme Court rejected the “catalyst theory,” holding that a “defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Defendants argue that plaintiff did not bring about an alteration of the legal relationship between the parties sufficient to prevail under Buckhannon,

Here, defendants’ decision to pay plaintiff’s medical bill was not brought about by judicial order or other action bearing “judicial imprimatur.” Id. Plaintiff cannot prevail under the Supreme Court’s reasoning in Buckhannon; thus, we are squarely faced with the decision of whether to apply Buckhannon in our interpretation of § 675(a).

In Merriam v. AIG Claims Services, Inc., 2008 VT 8, ¶¶ 16, 22, 183 Vt. 568, 945 A.2d 882 (mem.), we expressly declined the opportunity to overrule our prior case law endorsing the catalyst theory. We take this opportunity to extend our holding in Merriam and explicitly preserve the catalyst theory as a possible route to attorneys’ fees under § 675(a).

To prevail for purposes of the catalyst theory, a party must demonstrate: (1) that the filing of the lawsuit was a “necessary and important factor in achieving” the other party’s change in conduct, and (2) a “colorable or reasonable likelihood of success on the merits.” Here, we agree with the trial court that defendants paid plaintiff’s medical bill as a direct result of plaintiff’s lawsuit to enforce the terms of the settlement agreement pursuant to 21 V.S.A. § 675(a). There is little doubt that plaintiff’s lawsuit was the catalyst for defendants’ action. As to the second factor,plaintiff’s claim was not “frivolous, unreasonable, or groundless” as a matter of law.

Plaintiff contends that the trial court’s grant of $1000 in attorneys’ fees and $250 in costs for prevailing on the medical bill issue was unreasonable, given the “time and effort” that counsel expended on the litigation. Trial courts have ample discretion in determining the amount of attorneys’ fees to award, and we will not disturb the court’s decision unless it has abused this discretion. Here, the trial court reduced the award from plaintiff’s requested $17,932.50 to $1000 in fees and $250 in costs. The court noted that the unpaid medical bill was a peripheral issue compared to the rest of the litigation, and that plaintiff did not provide the discovery supporting payment until compelled by the court. we hold that the peripheral nature of the medical bill issue and plaintiff’s unnecessary delay in providing discovery provide ample reason to affirm the court’s decision.


Affirmed.

 How cited

Beneficiaries who successfully defended settlor’s capacity to execute trust not entitled to attorney’s fees.

Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 (06-Dec-2013)

BURGESS, J. Plaintiffs appeal from a judgment based on a jury verdict finding that the testator Phyllis Agan possessed the capacity and free will to execute a trust, leaving sizable bequests to defendants, various nonprofit organizations in the Town of Ludlow, Vermont. Defendants cross-appeal, claiming that the trial court erred in denying their requests for attorney’s fees and prejudgment interest. We affirm.

The motion for attorney’s fees had two bases. First, defendants relied on 14A V.S.A. § 1004, which provides: “In a judicial proceeding involving the administration of a trust, the probate division of the superior court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” Second, defendants argued that the court should invoke its inherent equitable power to award attorney’s fees in the interests of justice. See In re Gadhue, 149 Vt. 322, 327, 544 A.2d 1151, 1154 (1987) (noting the “historic powers of equity courts to award attorney’s fees as the needs of justice dictate”). The trial court observed that this was a contest between beneficiaries and that defendants were defending their interests in receiving the gifts and no other purpose related to the trust itself. 

Even assuming that “administration” of the estate could be construed to include a contest between beneficiaries over the testator’s capacity or free will in establishing the trust, the issue would remain whether “justice and equity” require an award of attorney’s fees under the statute—a question which in this case is largely indistinguishable from whether the court abused its discretion under its common-law authority in ruling that attorney’s fees were not required for “reasons of justice.” On this issue, we discern no basis to conclude that the court abused its discretion in determining that this dispute between beneficiaries under the trust implicated no considerations of justice or equity that warranted an award of attorney’s fees. See Knappmiller v. Bove, 2012 VT 38, ¶ 4, 191 Vt. 629, 48 A.3d 607 (mem.) (observing that awards for attorney’s fees are generally reviewed for abuse of discretion)

Attorneys fees cannot be denied to prevailing party under Prompt Pay Act where other claims on which party lost had no common core of facts

Nystrom v. Hafford, 2012 VT 60 (Robinson, J. ) 

Defendant appeals pro se from the trial court’s order granting plaintiff's request to partition jointly owned property.  Defendant argues that the court erred in rejecting his argument that he added plaintiff's name to the deed only in anticipation of marriage, in calculating the parties’ respective interests in the property, in granting plainitff’s request for occupancy, and in declining to award him attorneys’ fees in connection with plaintiff’s father’s Prompt Pay Act claim.  We affirm the trial court’s rulings concerning the partition itself, but reverse the trial court’s ruling with respect to attorneys’ fees and remand for reconsideration of defendant's fee petition pursuant to the Prompt Pay Act.

 9 V.S.A. § 4007(c) provides  that “[n]otwithstanding any contrary agreement, the substantially prevailing party in any proceeding to recover any payment within the scope of this chapter [addressing construction contracts] shall be awarded reasonable attorneys’ fees in an amount to be determined by the court or arbitrator, together with expenses”).  Defendant unequivocally prevailed on this claim.

In a more typical construction dispute, trial courts have significant discretion in identifying the prevailing party.  PPA claims typically arise in construction disputes in which one party seeks to be paid for its work and the other party seeks to avoid paying on the ground that the work was deficient.  In such cases, the commonality of facts underlying the PPA claim and related claims and defenses  is apparent. The Court has held that, where a common core of facts supports multiple theories of recovery, including PPA claims and non-PPA claims, “[t]he lawsuit cannot be viewed as a series of discrete claims.”  Electric Man, Inc. v. Charos, 2006 VT 16, ¶ 10, 179 Vt. 351, 895 A.2d 193 (quotation omitted).  As a result, in most construction cases that include PPA claims, courts typically determine the substantially prevailing party, if any, and the award of fees with reference to the broader range of claims at issue in the case rather than simply focusing exclusively on the PPA claim.  Notwithstanding this flexible standard, we conclude that the trial court’s order in this case exceeds its discretion.  

This case is not a typical construction dispute in which a court cannot reasonably determine the substantially prevailing party with respect to the PPA claim without taking into account the panoply of other claims on the table.  We reaffirm our prior holding that a fee award should not be apportioned among claims that arise from a common core of facts.  Electric Man, 2006 VT 16, ¶ 10.  But  trial courts must consider and determine which claims do, in fact, arise from a common core of facts insofar as the evidence relevant to those claims is the same. See Electric Man, 2006 VT 16, ¶ 10 (applying “common core of facts” analysis where “[v]irtually all of the evidence is relevant to all of the claims” (quotation omitted)). Father’s PPA claim is predicated solely on his labor in constructing the house on the property subject to this partition action.  The remaining claims among the parties do not spring from a core of facts in common with with father’s PPA claim,  and the evidence underlying these claims is largely distinct from the evidence offered to prove and rebut father’s PPA claim. On remand, the trial court should award Mr. Hafford legal fees associated with father’s PPA claim for reimbursement for labor in connection with the construction project. See Monahan v. GMAC Mortg. Corp., 179 Vt. 167, 199, 893 A.2d 298, 324 (2005) (determining attorneys’ fees attributable to specific claims is a question of fact for the trial court).

Affirmed in part, reversed in part, and remanded for further proceedings.