moncrief v. mcbride

Vermont arpeee Court
Filed 09/02/22
eq ae nit

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
ADDISON UNIT Docket No. 167-10-17 Ancv

JUNE MONCRIEF and NICHOLAS TONZOLA,
Plaintiffs

Vv.

GERALYN McBRIDE and DOUGLAS TOLLES,
Defendants

DETERMINATION OF ATTORNEYS’ FEES

In a Decision issued July 21, 2022 resulting from a coutt trial, the court determined that
Plaintiffs are entitled to $15,000 in damages based on a claim of unlawful mischief and a
permanent injunction. Plaintiffs are therefore entitled to attorneys’ fees attributable to the
unlawful mischief claim pursuant to 13 V.S.A. §3701 (f).

Rule 54 (d) (2) of the Vermont Rules of Civil Procedure set forth the procedures related
to the allowance of attorneys’ fees. “The court shall, insofar as possible, resolve issues relating to
fees without extensive evidentiary hearings. . .” /d. at Rule 54 (d)(2)(D). “The court shall find
the facts and state its conclusions of law as provided in Rule 52(a), and a separate judgment shall
be entered as provided in Rule 58.” /d. at Rule 54 (d)(2)(C).

In this case, the court heard some evidence on attorneys’ fees at the court trial, but also
provided an opportunity for Plaintiffs to supplement the evidence with an affidavit and
supporting documentation after the trial in accordance with Rule 54 (d)(2)(B), and provided the
Defendants the opportunity to file any objection and/or request a hearing. Plaintiffs have filed
numerous documents and a memorandum. Defendants have filed an objection and declined to
request a hearing.

The claims in the case were bifurcated with a first court trial in September of 2019 on
Plaintiffs’ claim to quiet title to the septic easement on Defendants’ land. This resulted in a 51
page Decision in February of 2020 and a 31 page amended Decision in May of 2020 in which
Plaintiffs were awarded title to the septic easement, its scope was defined, and Defendants were
enjoined from engaging in any activities in the easement area except for walking pending the
final decision. The final court trial on remaining claims was held over 5 days in March of 2022.

Plaintiffs seek $22,939.18 for attorney work on the quiet title claim, $81,253 for other
attorney work done prior to July 2021 on the unlawful mischief claim, and $55,868.76 for
attorney work on the unlawful mischief claim after July of 2021 for a total of $160,060.94.

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Defendants have raised several objections and argue that attorneys’ fees, if awarded, should be
limited to $1,385.83 which, they argue, is the only amount established by evidence.

“In calculating [a statutory] award of attorney’s fees, the court looks to the ‘most useful
starting point,’ the ‘lodestar figure,’ by determining the number of hours reasonably expended on
the case multiplied by a reasonable hourly rate, and then adjusting that fee upward or downward
based on various factors. These factors include, among others, the novelty of the legal issue, the
experience of the attorney, and the results obtained in the litigation.” LZ Esperance v. Benware,
2003 VT 43, 7 22, 175 Vt. 292 (citations omitted).

Plaintiffs’ attorneys, Richard Cassidy and Michael T. Russell, billed at the rate of $150
per hour.! There is expert evidence that their rates were reasonable and there is no contradictory
evidence. The court accepts the hourly rates at which time was billed. Defendants’ objections are
that there is insufficient admissible evidence to support the work done, that there is no expert
testimony to support the allocation of time attributable to the proportion of the unlawful mischief
claim that was successful, that the amount sought is out of proportion to the recovery in the case,
and that the use of two attorneys resulted in excessive fees.

Scope of Work for Attorneys’ Fees

The successful unlawful mischief claim was one of several claims and counterclaims
asserted by the parties against each other. Attorneys’ fees are permitted in this case only for the
successful unlawful mischief claim. 13 V.S.A. §3701 (f). Therefore, it is necessary for the court
to determine the amount of fees attributable only to that successful claim.

When Plaintiffs filed this suit, Defendants’ title to their land was encumbered by an
easement for a replacement septic system for the benefit of Plaintiffs but Defendants had refused
to acknowledge its validity. Defendants had excavated an Orangeburg pipe buried across the
easement area without informing Plaintiffs, pursued permits for an access road and built the
access toad thereby disturbing the soils and adding gravel, and caused heavy equipment to drive
over the road thereby repeatedly compacting the soils. They had damaged the easement area,
compromising it for use for its express purpose, and they sought to proceed with road use that
would further damage the area for easement purposes. Plaintiffs proved both that they were
entitled to enforcement of the easement rights in their deed and their unlawful mischief claim.

The case was not a simple one, however. The effect of the Orangeburg pipe that had been
buried under both parties’ properties was unknown when the case started and had to be
investigated, including whether or not it carried septic effluent and from what source, and there
were multiple other issues related to groundwater and drainage in addition to septic issues.
Plaintiffs had nine claims against Defendants, and Defendants pursued seven claims against
Plaintiffs. Expert investigation and advice was involved on both sides. To some degree, there
was a common set of facts related to several of the claims, but there were also many facts that
were unrelated to the successful claim.

! The billing rates were higher but were reduced for invoice purposes due in part to the fact that two attorneys
worked together on the case.
Chief among the hours of work spent on the case by Plaintiffs’ attorneys was their
unsuccessful effort to prove one aspect of the unlawful mischief claim. The unlawful mischief
cause of action had two aspects. One was that Plaintiffs held a legally enforceable easement for
septic replacement purposes and that Defendants had damaged the soils in the easement area to
an extent that compromised the area for its intended use. That was the successful portion of the
claim. The second was that Defendants had caused the septic system on the Plaintiffs’ own land
to fail, resulting in the need to design and install a wholly new septic system. In this portion of
the claim, Plaintiffs sought damages in the form of the full cost of their replacement system. That
portion of the claim was not successful.

Thus, the scope of the attorneys’ fees to be awarded to Plaintiffs are limited first to only
the unlawful mischief claim and not the many other claims in the case (except to the extent that
there is a common set of facts), and second to that portion of the unlawful mischief claim that
was successful, and not to the attempt to prove that Defendants caused Plaintiffs’ septic system
to fail. This calls for the court make a fair allocation of attorney work performed. Plaintiffs’
attorneys have purported to seek fees only for the unlawful mischief claim, but they have not
clearly differentiated between the successful and unsuccessful aspects of the unlawful mischief
cause of action.

Moreover, at issue between the parties is whether the Plaintiffs’ attorneys’ work on the
quiet title portion of the case is recoverable. The court concludes that it is. The quiet title action
was a prerequisite to the unlawful mischief claim due to Defendants’ denial or minimization of
the Plaintiffs’ easement rights altogether. Thus, proving the property right was a necessary part
of the unlawful mischief claim. While the quiet title issue was not novel, Defendants’ persistent
resistance to recognizing the validity of the easement rights necessitated extensive attorney work
on behalf of the Plaintiffs not only to validate the easement but also to delineate its scope. The
need for recognition of the easement and definition of its scope was caused by Defendants and
the two lengthy decisions of Judge Arms in the first court trial show that extensive attorney work
was required.

Defendants argue that the attorneys’ fees sought by Plaintiffs are out of proportion to the
size of the dispute and the outcome of the case, and point to the fact that compensatory damages
are only $15,000. However, it is not the size of the financial award that matters, but whether or
not the fees incurred were proportional to the demands of the case. L ‘Esperance v. Benware,
2003 VT 43, Jf 22, 24; Kwon v. Eaton, 2010 VT 73, 920. Attorney fees may be awarded even
where actual damages are minimal. “[T]he 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.” Evans v. Cote, 2014 VT 104, 426.
In this case, the evidence is clear that if Plaintiffs had not filed suit, Defendants would have used
the easement area for a road without regard to the property rights of Plaintiffs and their use
would have resulted in further damage to the capacity of the land to be used for the purpose of
the easement. The statutory right to attorneys’ fees serves the policy purpose of protecting
interests in property rights regardless of the financial measure of the extent of physical damage.
Evidentiary Support for Amount to be Awarded

Having described the scope of recoverable attorneys’ fees in general terms, the next step
is to determine what amounts within the defined recoverable scope have been proven with
sufficient clarity to make a reasonable allocation. As required by Rule 54 (d)(2)(C), the court is
obliged to engage in factfinding.

The evidence consists of testimony at trial from Plaintiffs’ expert attorney James A.
Dumont, a post-trial affidavit of Attorney Dumont, and a post-trial affidavit of Plaintiff's
Attorney Michael T. Russell. A number of other documents were filed, many of which were
referred to in the affidavits. Also submitted were some redacted attorney invoices.

Defendants argue that Plaintiffs’ evidence is not sufficiently supported by expert
testimony because Attorney Dumont did not perform his own analysis to differentiate between
work related to the unlawful mischief claim and work on other claims, but rather relied on
Attorney Russell who has a clear interest in the outcome. This is not necessarily fatal. Attorney
Russell is the most person most likely (along with Attorney Cassidy) to recognize from billing
records, case records, and memory what portions of the work were done on what aspects of the
case. Thus his evidence meets the standard of providing relevant evidence. The court does not
accept it as expert opinion evidence. However, as noted above, the allocation made by Attorney
Russell does not provide sufficient information differentiating the successful portion of the
unlawful mischief claim from the unsuccessful portion, and the unsuccessful portion was clearly
more complex and called for more attorney time and work with experts and technical
information. The court has to take this into account in evaluating Attorney Russell’s figures.

The court has spent considerable time seeking to understand and evaluate the information
provided and will describe its evaluation of the facts using Plaintiffs’ three phases: quiet title
work, other work prior to July 2021, and work since July 2021.

Quiet title work. While, as stated above, the court considers that in this case it would be
appropriate to include the work needed to quiet title as necessary work to prove the successful
unlawful mischief claim since Defendants challenged Plaintiffs’ easement rights, the court has
studied the material in support of the claim for $22,939.18 and cannot conclude that the amount
is sufficiently supported. While there is a document that lists amount of attorney time and billing
rate, there are no time and billing records to review. There is a separate list of the tasks
performed which is generalized and unrelated to the specific segments of time billed, and
includes references to topics and persons and issues that the court is unable to connect to the
successful unlawful mischief claim. Therefore, although work was clearly performed on the
portion of the claim for which fees are recoverable, the evidence is insufficient to support a
reasonably ascertainable specific amount of attorneys’ fees.

Other work done prior to July 2021. Plaintiffs rely on Attorney Dumont’s trial testimony
and a document authored by Plaintiffs’ attorneys in July of 2021 that disclosed Attorney
Dumont’s expert opinion at that time, which was that reasonable fees to that date for the
unlawful mischief claim were $81,253.70. There are two problems with this figure that make the
court unable to adopt it in full. First is that it represents a conclusory opinion without

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documentation to support it. Attorney Dumont testified what he reviewed in reaching that figure
and no doubt he did a responsible review, but the underlying work and time records are
unavailable to the court, leaving the court with simply a number that constitutes an opinion that
the court is unable to evaluate in relation to time and billing records. The second problem is that
since he accepted Attorney Russell’s allocation analysis, and the court has determined that that
analysis does not sufficiently differentiate between the successful and unsuccessful aspects of the
unlawful mischief claim, it appears clear that a portion of the work for which $81,253.70 was
billed was for the unsuccessful part of the unlawful mischief claim, which was the more complex
part. Thus the court cannot accept the figure as accurate, and has no information upon which to
attempt its own analysis to break the total down to a supportable figure.

The court is faced with the dilemma of not having a sound evidentiary basis for
determining a specific amount of attorneys’ fees for work done on the successful portion of the
unlawful mischief claim from the beginning of the case to July of 2021. On the other hand, there
is sufficient evidence to show that a considerable amount of work was done, and produced a
successful result, so the court is unwilling to conclude that there is a complete lack of proof. The
total requested for the quiet title work and other work to July 2021 is $22,939.18 + $81,253.70 =
$104,192. The court is obliged to simply use its judgment and finds that it is reasonable to
conclude that at least 40% of this total is attributable to the successful portion of the unlawful
mischief claim. That amount is $41,676.80, rounded to $41,700.

Work since July 2021. At trial, Attorney Dumont testified that he added up the invoices
from subsequent work and allocated half to the unlawful mischief claim, resulting in an
additional figure of $34,629.50 to March 9, 2022, which was midway during the trial. Attorney
Russell seeks $55,868.76 for work to the conclusions of the case. For the reasons stated above,
the court finds that both of those figures overstate attorneys’ fees reasonably related to the
successful portion of the unlawful mischief claim.

The court was able to scrutinize the redacted invoices from both attorneys’ law firms for
this period, which were submitted. The court examined each entry, taking into account its own
familiarity with the claims and issues on the basis of having conducted the trial, and finds that an
amount that fairly represents the portion of fees related to the successful portion of the unlawful
mischief claim after July of 2021 is $42,000.

As a consequence of the above evaluation of the evidence, the court concludes that, based
on available evidence, a reasonable amount of attorneys’ fees is $41,700 + $42,000 = $83,700.

Therefore, pursuant to Rule 54 (d)(2)(C), Plaintiffs’ attorneys shall prepare a separate
judgment for an award of $83,700 in attorneys’ fees to Plaintiffs.

Electronically signed pursuant to V.R.E.F. 9(d) on September 2, 2022 at 1:05 PM.

Poo.

Mary (files Teachout
Superior Court Judge