Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.


                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-201

                                         APRIL TERM, 2013

 Miriam R. Levin, Margaret G. Grundstein               }    APPEALED FROM:
 and Leon D. Grundstein                                }
                                                       }    Superior Court, Lamoille Unit,
    v.                                                 }    Civil Division
                                                       }
 Robert Grundstein                                     }    DOCKET NO. 148-8-05 Lecv

                                                            Trial Judge: Dennis R. Pearson

                          In the above-entitled cause, the Clerk will enter:

        Defendant Robert Grundstein appeals pro se from superior court orders requiring the
partition and sale of certain real property, and awarding plaintiffs attorney’s fees. We affirm.

        This is the third appeal to reach the Court in this protracted family dispute. The facts
may be summarized as follows. The parties are four siblings who jointly owned a camp on Lake
Eden which their parents deeded to them in April 1972. In August 2005, plaintiffs—three of the
siblings—commenced an action against the fourth—Mr. Grundstein—to partition the property.
Following a hearing, the trial court issued a final judgment, dated August 3, 2007, assigning title
to the property to Grundstein, “subject to the terms” of a separate order which conditioned the
assignment on Grundstein’s payment of $25,000 to each plaintiff as his or her share in the
property no later than June 1, 2008. The order further provided that, if Grundstein failed to make
the required payments, the property would be put up for sale and the proceeds divided into one-
quarter shares and paid to the parties.

        When Grundstein failed to make the required payments, plaintiffs offered the camp for
sale, found a buyer, and planned to close in October 2008. In response to Grundstein’s
opposition to the sale and claim that it was unauthorized, plaintiffs filed an action to enjoin him
from interfering. On September 29, 2008, the trial court issued an order granting the requested
injunctive relief, and requiring that Grundstein vacate the property.

        Grundstein appealed the injunction order to this Court, claiming that the August 3, 2007
partition order gave him a fee simple right in the property which could be extinguished only by a
foreclosure action. See Levin v. Grundstein, No. 2008-417, 2009 WL 2427820, at *1 (Vt. Mar.
5, 2009) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/eo08-417.pdf (Grundstein I).
We rejected the claim, explaining that, as permitted by the partition statutes, 12 V.S.A. §§ 5174-
5175, the trial court had properly assigned title conditioned on the payment of money, and that in
the event payment was not made in full, plaintiffs were to sell the property. “[D]efendant did not
obtain a fee simple interest in the property . . . without first having paid the money required to
obtain such an interest.” Grundstein I, 2009 WL 2427820, at *1. We thus held that the partition
“order was proper under the statute,” and that the court “did not err by enjoining [Grundstein]
from interfering with the sale of the property” pursuant to the order. Id.

        The planned sale apparently fell through, however, and the dispute continued. In March
2009, plaintiffs moved to hold Grundstein in contempt for failing to vacate the camp and remove
his personal property. Following a hearing on June 22, 2009, the court issued an order granting
the contempt motion subject to Grundstein’s complying with its prior order by June 26, 2009.
When he failed to comply, plaintiffs moved for an award of attorney’s fees on June 30, 2009,
which the court set for a hearing. The court issued a final judgment of contempt on July 6, 2009.
Grundstein appealed the order, raising a variety of claims. We affirmed, holding that his “vague
constitutional arguments claiming a deprivation of property without due process have no merit.”
Levin v. Grundstein, No. 2009-254, 2010 WL 1266673, at *1 (Vt. Apr. 1, 2010) (unpub. mem.),
http://www.vermontjudiciary.org/d-upeo/eo09-254.pdf (Grundstein II). We further held that,
“[t]o the extent that [Grundstein] is challenging the underlying injunction and partition order,
those arguments are barred by the principle of res judicata, as the arguments were raised and
rejected in this Court’s previous decision.” Id.

        In February 2011, the trial court held a hearing on several pending motions, including
plaintiffs’ motion for an award of attorney’s fees and motion to alter or amend the partition
judgment to assign them title to the property and grant Grundstein a one-quarter interest in the
proceeds of sale. In an entry order dated April 22, 2011, the trial court granted the latter motion,
treating it as akin to a motion for relief from judgment under V.R.C.P. 60(b)(6), and granted the
request for attorney’s fees, finding that the “repeated, and continuous conduct by [Grundstein] to
delay and frustrate” plaintiffs’ established right to sell the property upon his failure to buy-out
plaintiffs entitled them to attorney’s fees under “the limited exception to the ‘American rule’ ”
for wrongful conduct. The trial court found, however, that the billing information submitted by
plaintiffs’ attorney was inadequate, and ordered the filing of more detailed timesheets.
Grundstein filed a pro se appeal from the April 22, 2011 order.

         At Grundstein’s request, we stayed the appeal in August 2011 and remanded the matter to
the trial court to rule on certain post-judgment motions which he had filed. On January 24, 2012,
the trial court issued an order denying a motion to reconsider the April 22, 2011 order, denying a
motion for access to property, and granting a request for additional time to file objections to
plaintiffs’ attorney’s billing statements. An evidentiary hearing on the attorney’s-fee request was
held in July 2012. We removed the appeal from waiting status in December 2012, and scheduled
briefing. On January 8, 2013, the trial court entered an order awarding plaintiffs attorney’s fees
of $10,622.11.

        The claims on appeal are not well developed and difficult to parse. To the extent,
however, that they challenge plaintiffs’ right to sell the property under the terms of the partition
order or the merits of the injunction, they are barred for the same reason stated in Grundstein II,
2010 WL 1266673, at *1, to wit, that the arguments were raised and rejected in Grundstein I, and
are therefore res judicata.

        To the extent that Grundstein asserts the trial court lacked authority to amend the
partition judgment, he cites no case, statute, or other authority to support the claim, and we have
held that the trial court enjoys broad discretion to amend a judgment in the interests of justice

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under the catchall provision of Rule 60(b)(6). See Sandgate Sch. Dist. v. Cate, 2005 VT 88, ¶ 7,
178 Vt. 625 (mem.) (“Relief from judgment under Rule 60(b)(6) is intended to prevent hardship
or injustice and thus [is] to be liberally construed and applied.” (quotation omitted)); Adamson v.
Dodge, 174 Vt. 311, 326 (2002) (observing that trial court’s discretionary decision under
V.R.C.P. 60(b)(6) “is not subject to appellate review unless it clearly and affirmatively appears
on the record that such discretion was withheld or abused” (quotation omitted)). Grundstein
makes no showing, moreover, of how the order vesting title in plaintiffs prejudiced his interests
in any respect, inasmuch as it had no impact on the provision requiring an ultimate sale of the
property due to his failure to make the required buyout payments. See Perry v. Green Mountain
Mall, 2004 VT 69, ¶ 11, 177 Vt. 109 (noting that judgment will generally not be disturbed absent
showing that alleged error affected “matters truly of substance” (quotation omitted)). Grundstein
also asserts that he was denied notice of a possible change of title, in violation of his right to due
process, but he provides no support for the claim.

        The remaining claims appear to focus on the award of attorney’s fees. In this regard,
Grundstein appears to assert that the award was untimely and unauthorized under V.R.C.P.
54(d), by any statutory or contractual provision, failed to comply with the rules governing an
award of sanctions under V.R.C.P. 11, was legally and factually unsupported, and was based on
fraudulent billing records. The claims are meritless. The attorney’s fee motion was timely filed
within fourteen days of the court’s initial contempt order, V.R.C.P. 54(d)(2)(B), and was
predicated, as the trial court here noted, on the recognized common-law exception to the
“American rule” where litigation expenses are necessitated by the wrongful acts of a party. See,
e.g., Knappmiller v. Bove, 2012 VT 38, ¶ 5 (mem.) (reaffirming exception to general rule that
parties bear their own attorney’s fees and costs where “the wrongful act of one person” has made
it necessary for another to incur litigation expenses (quoting Albright v. Fish, 138 Vt. 585, 591
(1980)); Agency of Natural Res. v. Lyndonville Savings Bank & Trust Co., 174 Vt. 498, 501,
811 A.2d 1232, 1236 (2002) (mem.) (recognizing that courts have inherent authority, to be
exercised “with cautious restraint,” to award attorney’s fees “in those exceptional cases where
justice demands”); In re Gadhue, 149 Vt. 322, 328, 329 (1987) (recognizing court’s inherent
discretion to award attorney’s fees “to do justice and vindicate rights” where defendant
unnecessarily “prolonged the litigation” and compelled plaintiff to seek injunction).

        As noted, the trial court initially awarded attorney’s fees on the basis of its finding that
Grundstein’s actions were designed “to frustrate and delay” plaintiffs’ right to sell the property,
and compelled them to incur unnecessary litigation costs in obtaining an injunction and contempt
order. In its final order of January 8, 2013 specifically awarding fees of $10,622.11, the court
reaffirmed its finding that the award was based on actions by Grundstein “intentionally designed
to impede and frustrate the court’s orders and judgment, and to deny [p]laintiffs, the already
prevailing parties, the relief they have already won.” Grundstein had not shown these findings to
be erroneous, or the award an abuse of discretion. See Knappmiller, 2012 VT 38, ¶ 4 (observing
that awards for attorney’s fees are generally reviewed for abuse of discretion). Thus, the
argument concerning the absence of a statutory or contractual basis for the award, and the failure
to comply with the requirements for Rule 11 sanctions, are beside the point. The attorney’s fee
award was not based on the unreasonable filing of court papers, but rather, as the trial court
found, on Grundstein’s intentionally obstructive conduct—in violation of plaintiffs’ existing
rights and prior court orders—that necessitated the incursion of unnecessary litigation expenses.
See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991) (holding that courts retain inherent power

                                                  3
to sanction misconduct “where the conduct at issue is not covered by one of the other sanctioning
provisions” in the rules); Lawson v. Brown’s Home Day Care Ctr., Inc., 2004 VT 61, ¶ 20, 177
Vt. 528 (mem.) (noting that “because the court did not impose sanctions under Rule 11, the
rule’s requirements [were] irrelevant here”).

         Grundstein also appears to assert that the exception for wrongful misconduct requires
litigation with a “third party.” Although the cases occasionally refer to circumstances where the
wrongful acts of a person have made it necessary “to become involved in litigation with a third
party,” Windsor Sch. Dist. v. State, 2008 VT 27, ¶ 10, 183 Vt. 452, this is not a requirement for
application of the rule, which may as easily apply to litigation directly with the offending party.
See, e.g., In re Gadhue, 149 Vt. at 329-30 (actions by defendant which required plaintiff to seek
injunction and incur unnecessary expenses to protect her rights justified attorney’s fee award
under common-law exception for wrongful acts). In addition, Grundstein appears to argue that
the procedures and evidence relating to the award were deficient, challenging the submission of
“post-hearing evidence” and the absence of “third party testimony.” The court had the
discretion, however, to continue the attorney’s fee hearing and take additional evidence to
determine the sufficiency and reasonableness of the attorney’s billing statements. Furthermore,
as stated in the court’s decision, plaintiffs adduced the testimony of a “third party” in support of
the claim, an attorney who testified as an expert witness that the billings submitted by plaintiffs’
attorney were reasonable. Grundstein’s additional assertion that the attorney’s time sheets
perpetrated a “fraud on the court” is entirely unsupported.

        Finally, Grundstein claims that the trial court “act[ed] as an advocate” for plaintiffs’
attorney and failed to act impartially. In support, he asserts that the court held the evidence open
on the attorney’s fee claim for too long, and misapplied the law in awarding attorney’s fees.
Absent “a clear and affirmative showing of bias or prejudice” a judge’s recusal is not required,
and merely arguing that “none of the trial judge’s rulings [went] in [his] favor” does not meet
this standard. Ball v. Melsur Corp., 161 Vt. 35, 40-41 (1993). Accordingly, we find no basis to
support the claim, and no grounds to disturb the judgment.

       Affirmed.

                                                BY THE COURT:

                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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