Sherwood Development Corp. v. McCormick, No. S1519-04 CnC (Norton,
J., Aug. 2, 2005)

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STATE OF VERMONT                                      SUPERIOR COURT
Chittenden County, ss.:                           Docket No. S1519-04 CnC



SHERWOOD DEVELOPMENT CORP.

v.

McCORMICK



                               ENTRY
            (motion to amend & motion to limit attorney’s fees)

       Plaintiff Sherwood Development moves to alter or amend a June 6,
2005 order granting Defendant Hubert McCormick attorney’s fees. Its
argument is that the entry, based on a fee provision in an alleged contract, is
inconsistent with the facts, Defendant’s legal position, and equity.
Defendant opposes this motion as an improper use of V.R.C.P. Rule 59(e)
since there has been no change in the controlling law, no new evidence, or
any clear errors of law. 11 C. Wright, et al., Federal Practice & Procedure
§ 2810.1 (2d ed. 1995).

       Putting Defendant’s procedural argument aside for the moment,
nothing in Plaintiff’s motion undermines the conclusions of the earlier
entry. Plaintiff filed its original complaint seeking enforcement of a
purchase and sale agreement. It was dismissed because Plaintiff failed to
comply with the contract’s mandatory mediation clause. Neither Plaintiff’s
post fact willingness to comply with this mediation provision nor
Defendant’s dispute over the validity of the contract changes this
conclusion. Defendant filed for attorney’s fees because the contract, which
Plaintiff sought to enforce, contained a fee provision. Since Plaintiff
sought to enforce the contract and since the court has not ruled on its
validity, assignment of fees was proper for the reasons given in the June 6
entry.

       Plaintiff’s excuses for not opposing Defendant’s motion are also
unpersuasive. Plaintiff claims that it relied on a statement by a clerk of the
court that the motion would not be considered. This claim is
unsubstantiated and unverified, but more importantly, it did not relieve
Plaintiff of its duty to respond to a valid motion. Defendant’s Rule 54
motion for fees was valid and had to be considered by the court, but
Plaintiff’s opposition was voluntary. V.R.C.P. 54. Plaintiff chose not to
respond and cannot blame others. Finally, Plaintiff gives no compelling
reasons as to what basis it would have opposed the motion. Instead, it
restates contentions from its earlier opposition to dismiss. This court sees
no compelling reason under Rule 59 to alter or amend its earlier entry.

       The next question raised by the parties concerns the amount of
attorney’s fees for which Defendant is eligible. Defendant seeks $11,624
for itemized expenses. Plaintiff disputes four line-item charges as
inappropriate and argues that Defendant should not be eligible for fees after
February 3 when Plaintiff offered to engage in mediation. Defendant does
not oppose these proposed modifications, and the court agrees. The court
finds that Plaintiff is liable to Defendant for $8158.15 in attorney’s fees.

      Based on the foregoing, Plaintiff’s motion is Denied. Plaintiff shall
reimburse Defendant for attorney’s fees in the amount of $8,158.15.

       Dated at Burlington, Vermont________________, 2005.




                                    ________________________________
                                               Richard W. Norton, Judge
