                                 STATE OF VERMONT

SUPERIOR COURT                                            ENVIRONMENTAL DIVISION

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In re Barry (Clyde’s Place LLC) Notice of Violation     } Docket No. 142-7-07 Vtec
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                                  Entry Order for Costs

       In the above-captioned appeal, the sole Appellant was Clyde’s Place LLC, a small

family limited liability company.1 After a decision by the Vermont Supreme Court in this

appeal, In re Barry (Clyde’s Place LLC) NOV and in In re Clyde’s Place LLC Application,

2011 VT 7, judgment was entered in favor of Appellant as follows, concluding both

appeals:

              In Docket No. 142-7-07 Vtec, the Notice of Violation is hereby vacated and
       declared null and void. It is anticipated that the Town will issue a certificate of
       compliance; any such certificate may refer to the “maint[enance of] the preexisting
       nonconforming status of the new structure” as it was characterized by the Vermont
       Supreme Court.
              In Docket No. 9-1-08 Vtec, Applicant’s application for a new permit or a
       variance for the as-built structure has been withdrawn as unnecessary; the appeal
       involving that application is therefore dismissed as moot.
In addition, the related enforcement case Town of Orwell v. Clyde’s Place LLC and Patrick

Barry, No. 17-1-08 Vtec, had been filed in January 2008, but was placed on inactive status

until the Notice of Violation appeal and the as-built permit application would be decided,



1  Clyde’s Place LLC was formed to own and manage the property at issue in this
appeal. The six members of Clyde’s Place LLC are Patrick E. Barry and his wife
Kathleen Barry; their son Patrick J. Barry and their daughter Margaret Toth, and their
son’s and daughter’s spouses. To avoid confusion, the merits decision referred to
Patrick E. Barry also as Patrick Barry (Sr.) and to Patrick J. Barry also as Patrick Barry
(Jr.). Patrick E. Barry and his three siblings conveyed the property to Clyde’s Place LLC
in November 2006; the deed was recorded in March 2007.
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except that all three matters proceeded to mediation together in mid-2008.               The

enforcement case was concluded by a stipulation of dismissal, “each party to bear its own

costs and attorney’s fees.”

       Appellant has moved for costs only in the Notice of Violation appeal, Docket No.

142-7-07 Vtec. See 32 V.S.A. § 1551 (allowing witness’ fees for each day of attendance at

court and for in-state travel). Appellant seeks the following amounts, totaling $2,322.27.

Date                 Purpose                                    Amount

2007                 Court Filing Fee                           225.00

2008                 half of mediator’s fee                     411.25

March 2009
(depositions)        Payne deposition witness fee                30.00
                     Payne deposition mileage                     7.70
                     Payne & Simmons deposition cost            632.65
                     Barry (both Jr. & Sr.) deposition cost     318.00

March 2009           Payne subpoena                              64.72
(trial)              Payne trial witness fee                     30.00
                     Payne trial mileage                          7.70
                     Margaret Toth trial mileage                 37.40
                     Patrick J. Barry trial mileage              37.40

April 2009           half of trial transcript fee               520.45


       The Town agrees that Appellant is entitled to reimbursement of its filing fee of $225

for the Notice of Violation appeal, but argues that each of the other allowed costs should be

reduced by two-thirds, arguing that the costs were incurred in all three cases. The Town

also argues that the mileage fees for two principals of Appellant LLC who testified at trial,

Margaret Toth and Patrick J. Barry, should be disallowed in their entirety.

       Under V.R.C.P. 54(d)(1), costs are allowed to the prevailing party unless the court

“otherwise specifically directs.” Awarding costs to the prevailing party in a civil action
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such as this one is a discretionary matter for the trial court. See, e.g., Jordan v. Nissan

North America, Inc., 2004 VT 27, ¶16, 176 Vt. 465 (citing Peterson v. Chichester, 157 Vt. 548,

553 (1991)). In litigation of related cases in which a litigant prevails in some but not all of

the cases, costs must be allocated equitably to the prevailing party. See In re: Tenney

Notices of Violation, Nos. 169-9-03 Vtec, 186-9-07 Vtec, 70-4-08 Vtec, 226-12-03 Vtec,

261-11-07 Vtec, Decision and Order at 11–13 (Vt. Envtl. Ct. Aug. 14, 2009) (Wright, J.)

(assessing a penalty to reimburse town for its cost of enforcement solely in the two of the

five cases before the Court in which it prevailed); Decision and Order on Motion to

Reconsider and/or Alter or Amend at 7–9 (Vt. Envtl. Ct. Dec. 23, 2009) (Wright, J.) (granting

town an additional amount in costs that were attributable to the cases in which it prevailed,

while reaffirming its denial of costs attributable to the cases in which it did not prevail).

       All three cases were the subject of the mediation, before the enforcement case was

put on hold. The enforcement case was settled with an order for each party to pay its own

costs, so the one-third of Appellant’s share of the mediation fee attributable to the

enforcement case is not taxable as a cost. Nor is the one-third of Appellant’s share of the

mediation fee attributable to the permit case taxable as a cost in this Notice of Violation

appeal. As of the time of the mediation, the grant or denial of an as-built permit and the

issuance or withdrawal of the Notice of Violation were equal and alternative subjects of the

mediation. Therefore, only one third of Appellant’s share of the mediation fee—the one-

third attributable to the above-captioned Notice of Violation appeal—is taxable as a cost in

this case.

       After mediation, the enforcement case was placed on hold, and all subsequent

expenses for trial preparation and trial were incurred in the Notice of Violation appeal and

in the as-built permit application case, which were consolidated for the purposes of trial.

       All the expenses incurred for Mr. Payne, one of the two zoning administrators who

testified, are attributable solely to the Notice of Violation case, as his involvement had

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ceased before the project was actually constructed. Roland Simmons was the other zoning

administrator who testified; he issued the Notice of Violation.

       To determine if the costs attributable to the Simmons, Patrick J. Barry, and Patrick E.

Barry depositions, and to the trial transcript, should be allocated between the Notice of

Violation case and the as-built permit application case, it is necessary to examine whether

any of the evidence at trial pertained only to the as-built permit application case. See, e.g.,

Tenney Notices of Violation, Nos. 169-9-03 Vtec, 186-9-07 Vtec, 70-4-08 Vtec, 226-12-03 Vtec,

261-11-07 Vtec, Decision and Order on Motion to Reconsider and/or Alter or Amend at 7

(Vt. Envtl. Ct. Dec. 23, 2009) (Wright, J.) (penalties calculated to reimburse town for only

the costs incurred in cases in which it prevailed). As is evident from both this Court’s

decision on the merits after trial, and from the Supreme Court’s decision, the evidence

focused on the history of the transactions between Appellant’s representatives and the

Town’s representatives, plus the design features of the project itself, all of which were

necessary for the Notice of Violation case. The Court was able to resolve the as-built permit

application case, including whether the project qualified for a variance, in just a few

sentences, based on the evidence that had already been presented regarding the Notice of

Violation case.   Therefore, in the present case it is not appropriate to allocate the costs

attributable to the Simmons, Patrick J. Barry, and Patrick E. Barry depositions, and to the

trial transcript, between the two cases. All of those costs were incurred in the Notice of

Violation case and would have been required regardless of whether the as-built application

case had or had not been consolidated with it.

       Appellant also claimed in-state trial mileage for Margaret Toth and Patrick J. Barry,

two of the six members of Clyde’s Place LLC, amounting to 68 miles for each of them, at 55

cents a mile. Appellant is not entitled to claim this amount as costs.

       It is well established in Vermont and in other states that an individual party in

interest cannot recover witness fees and travel expenses in connection with that person’s

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testimony as a witness at trial. Hale v. Merrill, 27 Vt. 738 (1855); see also, e.g., Swallows v.

Laney, 102 N.M. 81, 86, 691 P.2d 874, 879 (N.M. 1984) (internal citations omitted) (successful

party may not be awarded witness fees and mileage expenses for appearing as a witness in

his or her own case).

       When the party is a limited liability company, corporation or similar entity, the

Court must analyze whether a member, principal, or officer who testified was functioning

simply as a witness for the entity or is more closely identified with the entity and

personally affected by the outcome of the litigation. Ordinarily, witness fees and mileage

incurred by directors, officers, or employees of a corporate entity may be awarded as costs

where the individuals have no personal interest in the outcome of the litigation. A.J.

Tenwood Associates v. Orange Senior Citizens Housing Co., 200 N.J. Super. 515, 531–32,

491 A.2d 1280, 1288–89 (N.J. Super. Ct. App. Div. 1985) (internal citations omitted), cert.

denied, 101 N.J. 325, 501 A.2d 976 (1985); see also Foothill-De Anza Community College

Dist. v. Emerich, 158 Cal. App.4th 11, 30, 69 Cal. Rptr.3d 678, 690 (Cal. Ct. App. 2007) (no

authority to deny fees to individual employees of entity “not shown to have any private

interest in the litigation” (citing Trussell v. City of San Diego, 172 Cal. App.2d 593, 617, 343

P.2d 65, 80 (1959)); Treasure Valley Plumbing and Heating, Inc. v. Earth Resources Co., 115

Idaho 373, 379, 766 P.2d 1254, 1260 (Idaho Ct. App. 1988) (noting that president and

accountant of prevailing corporate party were not themselves parties, warranting award of

costs for their attendance at trial).

       On the other hand, if the individual members of an entity do have a private interest

in the litigation, as is the case with all six members of Clyde’s Place LLC, they are treated as

parties in interest to the litigation and are not entitled to mileage or witness fees. See A.J.

Tenwood Associates, 200 N.J. Super. at 532–34, 491 A.2d at 1289–90. Thus, Appellant is not

entitled to reimbursement for the mileage costs incurred by Margaret Toth and Patrick J.

Barry, as well as by Patrick E. Barry (for whom mileage was not claimed).

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       Accordingly, based on the foregoing, costs are hereby awarded to Appellant in the

total amount of $1,973.30, calculated as follows:



Date                 Purpose                                       Amount

2007                 Court Filing Fee                              225.00

2008                 1/3 of Appellant’s half of mediator’s fee     137.08

March 2009           Payne deposition witness fee                   30.00
                     Payne deposition mileage                        7.70
                     Payne & Simmons deposition cost               632.65
                     Payne subpoena                                 64.72
                     Barry (both Jr. & Sr.) deposition cost        318.00
                     Payne trial witness fee                        30.00
                     Payne trial mileage                             7.70

April 2009           Appellant’s half of trial transcript fee      520.45




       Done at Berlin, Vermont, this 23rd day of May, 2011.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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