State of Vermont
Superior Court_Environmental Division

In re Toor & Toor Living Trust NOV Docket No. 18-1-10 Vtec
(Appeal from Town of Grand Isle Development
Review Board determination)

 

Title: l\/lotion for Attorney’s F`ees (Filing No. 3)
l\/lotion to Strike (Filing No. 4)

Filed: November 30, 2010 (F`iling No. 3)
December 28, 2010 (Filing No. 4)

Filed By: John H. Klesch, Attorney for Appellee Tovvn of Grand lsle

Response in Opposition to Filing No. 3 filed on 12/ 15/ 10 by Thomas F`. Heilman,
Attorney for Appellants John and l\/largaret Toor

Reply for Filing No. 3 filed on 12/20/ 10 by John I-l. Klesch, Attorney for Appellee Tovvn
; Granted X Denied _ Other

Before the Court is a motion filed by the Tovvn of Grand lsle (“Tovvn”) seeking an
order directing partial reimbursement of the attorney’s fees incurred by the Tovvn in
association With an appeal of a Notice of Violation issued by the ToWn against Appellants
John and Margaret ’l`oor, co-trustees of the Toor Living Trust (“Appellants”). T he ToWn
has also filed a motion to strike a memorandum filed by Appellants that supplements
their original response memorandum to the ToWn’s motion for attorney’s fees. By this
second pending motion, the Tovvn asks that the Court disregard Appellants’
supplemental memorandum. For the reasons stated belovv, We DENY both of the Tovvn’s
pending motions.

We turn first to the motion to strike as its resolution affects vvhat information this
Court vvill consider vvhen determining vvhether to grant the Tovvn’s motion for attorney’s
fees. The substantive questions Appellants have raised in their appeal are addressed in a
separate Decision that accompanies this Entry Order.

Under V.R.C.P. 78, any party opposed to a motion is granted the ability to file a
memorandum in opposition Within 15 days after receiving service of that motion. See
also V.R.E.C.P. 5(a)(2) (incorporating the Vermont Rules of Civil Procedure into our
procedural rules for appeals of appropriate municipal panel decisions). Rule 78 also
expressly permits any party to file a reply to an opposition memorandum vvithin 10 days
after receiving service of such memorandum. While there is no reference in V.R.C.P. 78
to documents supplementing the opposition or reply memoranda, it is Within the
discretion of the Court to determine vvhether to consider such supplemental filings; the
Court is not prohibited from considering them.

Here, the 'l`ovvn filed its motion for attorney’s fees on November 30, 2010.
Appellants subsequently filed a memorandum in opposition on December 15, 2010, and

In re Toor & Toor Livinc/ Trust NOV, No. 18-1-1 O Vtec (EO on Multiple Motions) (1-31-1 l) Page 2 of3

the Town responded with a reply memorandum on December 20, 2010. Appellants
followed up with a supplemental memorandum on December 27, 2010.

We see no harm to the T own or any of the interested parties in this appeal in
considering Appellant’s supplemental memorandum, particularly since the '1` own has not
put forth any evidence of undue prejudice, and consideration of the supplemental
memorandum does not delay the Court’s ability to respond to the Town’s motion for
attorney’s fees. Therefore, we DENY the Town’s motion to strike Appellant’s
supplemental memorandum.

Turning to consideration of the Town’s motion for attorney’s fees, we first note that
Vermont prescribes to the American rule in relation to the reimbursement of attorney’s
fees. That is, each party is responsible for its own attorney’s fees unless there is a
statute or agreement between the parties authorizing an award of reimbursement of
attorney’s fees. See, e.g., Grice v. Vt. Elec. Power Co., 2008 VT 64, 11 29, 184 Vt. 132.
Courts can deviate from the American rule “but ‘only in exceptional cases and for
dominating reasons of justice.’” See l\/lonahan v. Gl\/IAC Mortgage Corp., 2005 VT 110,
11 76, 179 Vt. 167 (quoting Sprague v. ’l`iconic Nat’l Bank, 307 U.S. 161, 167 (1939)).

 

 

Here, the Town seeks receipt of attorney’s fees as reimbursement for the time the
Town’s attorney spent drafting a joint statement of undisputed material facts. The Town
alleges that Appellants neither made a bona fide good-faith attempt to reach agreement
on a joint statement nor notified the Town when they determined they could not
participate in such an effort. (See Mot. for Att’y’s Fees, filed Nov. 30, 2010). The Town
argues that this behavior violates the Court’s pretrial Scheduling Order of July 27, 2010
and that, consequently, the Court has authority under V.R.C.P. 16.2 to require
Appellants to reimburse the Town for its attorney’s fees as a type of sanction.

Rule 16.2 grants the Court authority to impose specific sanctions if a party fails to
obey a scheduling order. V.R.C.P. 16.2 (“When a party fails to obey a scheduling order,
the court may impose the sanctions provided in Rule 37(b)(2)(B) or (C) . . . .”); See
V.R.C.P. 37(b)(2)(B), (C). Unlike in Rule 16 of the Federal Rules of Civil Procedure, there
~ is no reference to attorney’s fees in Vermont’s Rule 16.2. Compare V.R.C.P. 16.2 with
Fed R. Civ. P. 16(fl. Additionally, V.R.C.P. 16.2’s restrictive incorporation of only some of
the sanctions discussed in V.R.C.P. 37(b)(2) implies that the ability to require payment of
attorney’s fees that is discussed in V.R.C.P. 37(b)(2) was considered and rejected in the
formulation of procedural rules on non-compliance with scheduling orders. See V.R.C.P.
37(b)(2)(B), (C)-

We do not read Rule 16.2 to provide a statutory grant of authority to impose
attorney’s fees solely for non-compliance with a schedule order, but even if we were to
accept the 'l`own’s argument on this point, there is no non-compliance here. The Court’s
Scheduling Order of duly 27, 2010 was not disobeyed. The Scheduling Order did not
oblige the parties to agree to a joint statement of undisputed material facts and did not
dictate how the parties were to interact; instead, it simply required the parties to
endeavor to file a joint statement. The Order expressly stated that if the parties could
not agree, they could file separate statements of undisputed facts. For these two
reasons_while we find it regrettable that Appellants’ and their attorney’s actions did not
evidence a more cooperative spirit-we conclude that the Scheduling Order was not
violated and that therefore none of the possible sanctions allowed under Rule 16.2,
regardless of whether they include attorney’s fees, apply here.

In re Toor & Toor Lil)inq Trust NOV, No. 18-1-1 O Vtec (EO on Multzple Motions) (1-31-1 l) Page 3 of3

This Court does have inherent authority to impose attorney’s fees; however, such
authority is greatly restricted and only available in truly exceptional circumstances See
ln re Gadhue, 149 Vt. 322, 327-30 (1987) (awarding attorney’s fees to cover plaintiff’s
second lawsuit which she had to file in order to obtain the relief to which her first lawsuit '
entitled her); Vt. Women’s Health Ctr. v. Operation Rescue, 159 Vt. 141, 1437 150-51
(1992) (upholding a trial court’s grant of attorney’s fees in a contempt action against
parties who evaded service of a temporarily restraining order that restricted their conduct
while protesting outside a women’s health clinic and who knowingly violated the order).
Absent exceptional circumstances, the American Rule applies, thereby disallowing an
award of attorney’s fees. See Galkin v. Town of Chester, 168 Vt. 82, 91 (1998).

 

 

The alleged behavior of Appellants of which the Town complainsifailing to
communicate with the Town_while regrettable and not sanctioned by this Court, does
not rise to the level of exceptional circumstances warranting the award of attorney’s fees.
Consequently, we also DENY the Town’s motion for attorney’s fees.

<_OWHMM Januarv 31, 2011

Thomas\S. Durkin, Judge Date

 

Date copies sent to: Clerk's Initials
Copies sent to:

Thomas F Heilman Attorney for Appellants John and l\/largaret Toor

John 1-1 Klesch, Attorney for Appellee Town of Grand Isle

Christopher D. Roy, Attorney for lnterested Persons Point Farm Landowners Assoc.; Thomas and
Jeanne Jagielsk; Zave Aberman; Bill and Helen Walsh; David DeSarno; Estate of Barbara
lrwin; Charles and Luisa Finberg; Tonya and Michael Placke; and Joan Wheeler

