Thorp v. Moonstone

VERMONT SUPERIOR CIVIL DIVISION
COURT
Orange Unit Case No. 23-CV-05031
5 Court Street
Chelsea VT 05038
802-685-4610
www.vermontjudiciary.org

Eric Thorp et al v. Vanilla-Clove Moonstone

FINDINGS, CONCLUSIONS, AND JUDGMENT

This is an ejectment action. Plaintiffs Eric and Lynn Thorp rented a dwelling unit

to Defendant Vanilla-Clove Moonstone at 11 Thorp Road in South Strafford, Vermont,

beginning on June 1, 2018. Plaintiffs began this ejectment action in December 2023, and

Ms. Moonstone was removed from the house pursuant to a Writ of Possession issued on

September 19, 2024. This matter came to trial on March 10, 2025 on the sole issue of

damages and attorney’s fees under 12 V.S.A. § 4854. Based on the evidence and

exhibits, the Court makes the following findings and conclusions.

Factual Findings

The property at issue in this case is a single-family residence and adjoining three

acres located at 11 Thorp Road in South Strafford, Vermont. Defendant Moonstone

began renting the property from the Thorp Plaintiffs in June of 2018 and occupied it
Order Page 1
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
continuously until her removal in September of 2024. At the time she entered into the

lease, Defendant provided a security deposit of $1,000. Under the terms of the original

lease, Defendant was required to pay $1,800 per month in rent. When the lease was

renewed, the rent remained the same. Rent remained at $1,800 until October 2022, when

it increased to $2,200 per month. In June 2023, Plaintiffs increased the rent to $2,300.

Plaintiffs gave Defendant more than 60 days of notice for each of these rent increases.

Unpaid Rent and Security Deposit

Defendant paid her monthly rent regularly until July of 2023. After that, she made

rent payments sporadically. As of the termination of her tenancy, pursuant to the Court’s

September 2, 2024 Rent Escrow Order, Defendant had not paid for 9 months of rent at a

rate of $2,300 per month for a total unpaid rent total of $20,700.

Following Defendant’s removal from the property, Plaintiffs filed a timely notice of

withhold of the security deposit, which they seek to apply to the rent and unpaid

damages. Plaintiffs also seek a 10% late fee charge pursuant to the lease, which they

calculate would equal $2,070. This late fee is not associated with any out-of-pocket

costs for Plaintiffs but simply represents the aggravation of dealing with untimely

payments.

Damages Beyond Normal Wear and Tear

The bulk of Plaintiffs’ case concerns damages to the house that they found upon

taking possession of the property at the end of September 2024. These include: (1) the

Order Page 2
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
deck on the house being covered in dog feces and urine; (2) claw marks on trim and

multiple urine spots in the house and mold in the basement on walls where dogs

urinated; (3) feces in the basement; (4) broken hot water heater; (5) broken faucet in the

master bedroom; (6) melted wax throughout the house; (6) broken toilet in main

bathroom; (7) broken screens; (8) wallpaper removed from the bathroom; (9) removal of

all flowers from the flower bed; and (10) failure to re-fill the fuel tank to the level she

received it.

Plaintiffs testified that these damages occurred during Defendant’s tenancy and

have left the property unrentable. Plaintiff Eric Thorp testified that he has incurred over

$20,000 in expenses to date including the rental and disposal of material in a 30-yard

dumpster for $1,600; new materials in the amount of $2,400; costs of demolition, and

initial repairs. Plaintiffs’ contractor Ross Johnson testified that final repairs to the

property would equal or exceed $115,000. Neither Plaintiff nor Mr. Johnson submitted a

breakdown of this cost estimate or an explanation for the source of these expenses.

Defendant Moonstone denies these allegations. She testified that the mold

damage in the basement was due to ground water seeping into the basement. Defendant

testified that she notified informed Plaintiffs several times about the water damage, but

she claims that they took no action. Defendant also testified about the deck. She stated

that it was an older deck that appeared to be failing when she started to rent the property

and that without repairs or maintenance, it simply became more dilapidated. Defendant’s

witness James Marcroft, who helped her move out of the property, stated that he did not

Order Page 3
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
see any dog waste on the deck, and it looked to him simply like an old deck that had

probably been installed in the 1980s and had not been maintained or repaired.

Defendant submitted several photographs of the basement. The pictures portray a

damp basement with water and high humidity. There is a picture of a basement

refrigerator that shows signs of high humidity in its rust and deterioration. The pictures

showing mildew of the walls also show a uniform pattern. The mildew runs up the walls

at regular intervals with a column-like shape. The Court finds that the most reasonable

explanation is that there is source of water at each of these points that wicks up the

drywall, which provides the conditions for mildew growth.

Plaintiffs provide credible testimony that the upstairs of the house had extensive

dog damage including claw marks on the trim and urine on the carpet and rugs. There

was also testimony of finding melted wax throughout the house. Plaintiffs also provided

evidence that there was a broken faucet in the master bathroom, a broken toilet in the

main bathroom, broken screens throughout the house, and that wallpaper has been

removed from the bathroom.

There was also evidence of a broken hot water heater, but Defendant put on

credible evidence that this resulted from normal wear and tear and was reported to

Plaintiffs in a timely manner. As such, the Court does not allow this damage. Similarly,

there appears to be little dispute regarding changes that Defendant made to the flower

beds, but the Court finds that this action was within Defendant’s ability to control and

use the premises around the house. As such, this damage is not allowed.
Order Page 4
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
The Court finds that Defendant testified that she notified Plaintiffs of several

defects that were not repaired in a timely manner or at all. The Court finds that there is

no credible evidence that there were communications between the parties about ongoing

defects. While Defendant testified as to making these claims, they appear to be isolated

and singular complaints without documentation or evidence of follow-up. There is no

record of reducing the complaints to writing or making any type of written notice that

would have squarely put Plaintiffs on notice as required under 9 V.S.A. § 4458. As well,

the evidence indicates that whatever defects existed, they did not interfere with

Defendant’s ability to occupy and use the property. In short, there is no evidence that

any defect was clearly raised to Plaintiffs, for which they refused to make repairs, and

which, in turn, prevented Defendant from occupying or using the property. As such, the

Court finds no basis for Defendant to withhold rent or offset any claims for damages.

Finally, Plaintiffs provided credible testimony that Defendant left the fuel tank for

the house empty after having received a half-full tank. As a result, Plaintiffs have

incurred $500 in damages to refill the tank to the same level that Defendant received.

The Court awards this damage to Plaintiffs.

A large part of Plaintiff’s damages and costs appear to arise from the allegation

that excessive dog feces, urine, and mold ruined the deck on the house. Mr. Johnson

testified that the deck was structurally compromised by these issues and would have to

be re-built or substantially refurbished as it is presently failing. The Court finds that

Plaintiffs have not sustained their burden on this issue. Neither Plaintiff nor Mr. Johnson

Order Page 5
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
provided pictures or a specific explanation as to why excessive dog waste would cause

the failure of the deck. The Court also finds Defendant’s testimony credible on two

points. First, this was an older deck that had been installed at least 20 to 30 years before

Defendant took possession. Second, there is no evidence that Plaintiffs maintained this

deck or did any preventative work or repairs during Defendant Moonstone’s five-year

tenancy. As such, the Court finds it more credible and more likely that the deck failed

due to age and natural deterioration. While the Court finds the testimony concerning dog

waste credible, it finds that this waste was at most an accelerant and not a main cause

for the deterioration. Given that Plaintiff has not put forward any substantial causative

evidence, the Court finds that there is not enough evidence to conclude that Defendant

was responsible for the collapse and loss of the deck.

As to the basement walls, the Court had testimony from both parties and pictures

submitted by Defendant. The Court finds based on the evidence that the theory that dog

urine caused the mold is at most a possibility but not the probable cause of the mold.

The pattern of the mold reflects more uniform water distribution and absorption, and the

evidence indicates that basement was regularly wet and humid. As with the deck, the

Court finds Plaintiffs’ testimony that there was dog urine in the basement to be credible,

but it does not find that Plaintiffs have connected the presence of urine to specific

mildew areas or patterns.

For these reasons, the Court does not find a basis to award Plaintiffs for either the

deck or the basement damages.

Order Page 6
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
As to the remaining damages, the Court does find that Plaintiffs have

demonstrated a basis for the damages to the upstairs of the rental unit and for the

various broken items. While Plaintiffs have not provided a specific dollar amount, Eric

Thorp testified that he has expended $20,000 specifically for repairs and replacement of

items on the first floor The Court finds this to be a credible figure of Plaintiffs’ damages

beyond normal wear and tear and awards $20,000 for such damages. Along with the fuel

oil award, this brings Plaintiffs’ damage award to $20,500.

Attorney’s Fees

Plaintiffs also seek attorney’s fees pursuant to their lease agreements with

Defendant. 12 V.S.A. § 4854 (allowing attorney’s fees pursuant to a lease agreement);

see also Ring v. Carriage House Condominium Owners’ Ass’n, 2014 VT 127, ¶ 19.

Counsel for Plaintiff testified that he put 46.8 hours of work into the present matter at an

hourly rate of $300 for a total attorney’s fee of $14,040. The present case was initially

filed in December 2023 and continued through March of 2025. There were multiple

motions in the case, including two rent escrow motions, two motions to dismiss, amended

complaints, and several motions to continue. The parties engaged in extensive

negotiations, and there were multiple in-person/hybrid hearings where evidence and

testimony was sought and produced. While elements of this action follow the pattern of

a landlord-tenant ejectment action, the record indicates that this was a vigorously

contested matter with both sides filing legal briefs and providing evidence and testimony

on nearly every substantive and procedural juncture in this matter.

Order Page 7
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
Legal Analysis

Unpaid Rent and Damages

The bulk of Plaintiffs’ claims are relatively straightforward. Under 12 V.S.A. §

4854 and 9 V.S.A. §§ 4455, 4456, and 4468, a landlord may recover any damages due

and owing under the lease agreement or incurred by the negligent actions of the tenant.

In this case, Defendant did not pay her rent for nine months that she lived in and

occupied the dwelling unit. Landlord is entitled to the unpaid rent for these months at

the noticed monthly rate of rent of $2,300. Thus, Plaintiffs are entitled to $20,700 in

unpaid rent. The Court also finds that Defendant failed to re-fill the fuel tank to the level

that she received. As a result, Plaintiffs had to fill the tank and incurred $500 in costs to

which they may claim as damages. Finally, Plaintiffs have established damages beyond

normal wear and tear in the amount of $20,000. The Court awards this amount for total

damages of $41,200.

Late Fees

The Court is obligated to scrutinize any request to late fees pursuant to a lease

agreement to determine if they are liquidated damages or an illegal penalty for late

payment. Highgate Associates, Ltd. v. Merryfield, 157 Vt. 313, 315–16 (1991). A valid

liquidated damages clause must meet three criteria for a Court to impose the penalty.

They include:

Order Page 8
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
1. because of the nature or subject matter of the agreement, damages
arising from a breach would be difficult to calculate accurately;
2. the sum fixed as liquidated damages must reflect a reasonable
estimate of likely damages; and
3. the provision must be intended solely to compensate the
nonbreaching party and not as a penalty for breach or as an incentive
to perform.

Id. (quoting New England Educational Training Service, Inc. v. Silver Street Partnership,

156 Vt. 604, 613 (1991)).

In this case, Plaintiffs admit that the 10% late fee does not correspond to any

particular damage or cost to them, but represents an incentive, and effectively a penalty,

to compel timely payments. Plaintiffs admit that there are no damages to them for late

payment apart from the loss of the payment itself. The 10% rate for the late fee does not

calculate the loss of a timely monthly payment to the prevailing interest rate. Under

Highgate Associates, such a provision constitutes an illegal penalty and is unenforceable.

157 Vt. at 317–18. As such, the Court denies Plaintiffs’ request for late fees in this case.

Attorney’s Fees

Plaintiffs are entitled to their attorney’s fees under both 9 V.S.A. § 4456 and 12

V.S.A. § 4854, which allow for attorney’s fees. The Court finds that the provisions of the

parties’ leases included a provision for attorney’s fees. While Defendant refused to sign

the 2023 proposed lease, she remained subject to the prior lease terms. See Maniatty v.

Carroll Co., 114 Vt. 168, 169 (1945) (explaining that when a tenant holds over from a prior

Order Page 9
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
lease with the consent of the landlord, the terms and conditions of the original lease carry

over). In this case, notwithstanding Defendants refusal to sign the new lease, she

remained on the property, Plaintiffs did not immediately move to evict, and Ms.

Moonstone continued to pay rent at the terms noticed and agreed by the parties. The

Court finds that Defendant held over subject to the terms of the prior leases, which

included provisions for attorney’s fees. Therefore, Section 4 of the 2022 lease is

enforceable against Defendant for reasonable attorney’s fees associated with the

eviction.

In determining the reasonableness of a fee award, the Court begins with the so-

called “lodestar figure,” which is the number of hours reasonably expended on the case

multiplied by a reasonable hourly rate. L’Esperance v. Benware, 2003 VT 43, ¶ 22; see

also Ring, 2014 VT 127, at ¶¶ 20–21. This concept arises from United States Supreme

Court case law that dictates that a Court reviewing a request for attorney’s fees should

begin its analysis by first looking at the number of hours expended by the prevailing party

and established through documentation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The Court should then exclude from this initial calculation any hours that were “not

reasonably expended” on the case. Id. The Supreme Court explains that this can include

situations where the case is overstaffed, where the hours are redundant, where the

excess billing may be the result of differing attorney skill, and other elements that go into

what is often called “billing judgment” in the private sector. Id.

Order Page 10
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
In making this analysis, the Court is guided by the demands of the case and not

necessarily the amount of the damages. The Vermont Supreme Court has expressly

rejected that approach to attorney’s fees, and it has affirmed attorney’s fee awards that

have exceeded the underlying damages by as much as 86%. Vastano v. Killington Valley

Real Estate, 2010 VT 12, ¶ 9 (awarding $55,012 in attorney’s fees after a $7,875 award

of damages); see also Kwon v. Eaton, 2010 VT 73, ¶ 20 (re-affirming the holding of

Vastano and its successor cases).

After making this initial calculation, the Court may then adjust the amount upwards

or downwards based on the circumstances of the case and factors including: 1) the

novelty of the legal issue; 2) the experience of the attorney; and 3) the results obtained

by the litigation. L’Esperance, 2003 VT 43, at ¶ 22. Of these factors, Hensley holds that

the most important is the third. Hensley, 461 U.S. at 434. This may be broken down into

an analysis of whether the plaintiff failed to prevail on part of its claims and did the

plaintiff achieve the “level of success that makes the hours reasonably expended in a

satisfactory basis for making a fee award . . . .” Id. This does not mean that an attorney’s

fee is reduced simply because the plaintiff did not prevail on every contention raised in

the lawsuit—particularly if those contentions were made in the alternative or go beyond

what the court had to decide. Id at 435. “There is no precise rule or formula for making

these determinations.” Id. at 436. The trial court is given wide discretion in making these

determinations. L’Esperance, 2003 VT 43, at ¶ 21.

Order Page 11
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
In this case, the Court finds that the 46.8 hours of attorney time is reasonable

based on the amount of work required to litigate the present case. The Court finds that

the $300 per hour rate is consistent with an experienced civil litigator in this area.

Therefore, the Court finds that Plaintiff’s proposed amount is consistent with the lodestar

for this type of action.

The next question is whether the specific factors under L’Esperance warrant an

increase or decrease in this amount. None of the factors warrant either an increase or

decrease. Despite the length of the litigation, the current action involved no novel areas

of law. There was no special experience that Attorney Teachout brought to this case—

just good civil litigation skills. The results obtained by the litigation also do not warrant a

shift in the lodestar. Plaintiffs succeeded in removing Defendant from the dwelling unit

and have proven several claims for damages, but they did not succeed on several major

claims, including damages to the basement and to the deck. While the Court finds

Plaintiffs to be the prevailing party, the result has some mixed elements. As such, the

factor warrants neither an increase nor decrease. In particular, the Court does not find

that Plaintiffs’ success claims and the legal work behind them can be separated from the

unsuccessful portions of the case. Attorney Teachout’s billing indicates a more uniform

whole in which the costs of litigation arose from the basic elements of the claim,

providing timely notice, filing the complaint, replying and objecting to motions, and to

preparing for hearings. These expenses are neither increased nor diminished by the

Order Page 12
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
outcome and results of the case. They are proportionate to the needs of the case, and

the Court finds them reasonable.

For these reasons, the Court finds that Plaintiffs’ attorney’s fees are reasonable at

the amount sought by Attorney Teachout, and they are awarded in full in the amount of

$14,040.

ORDER

Based on the foregoing, it is ordered and adjudged that Plaintiffs Eric and Lynn

Thorp shall have judgment against Defendant Vanilla-Clove Moonstone in the amount of

$41,200 in damages and $14,040 in attorney’s fees. The right of possession has

previously been awarded to Plaintiffs in a prior order and writ of possession is affirmed

again here. Plaintiffs are further awarded their costs in the amount of $623.48 for filings

fees and service costs. V.R.C.P. 54(d). The Court awards a total, final judgment of

$55,863.48.

Electronically signed on 5/28/2025 1:10 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

yce E. Mc Keeman
Assistant Judge·

Order Page 13
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone
The Hon Laurel Mackin
Assistant Judge

Order Page 14
of 14
23-CV-05031 Eric Thorp et al v. Vanilla-Clove Moonstone