Hall et. al. v. Denio et. al., No. 197-6-11 Bncv (Wesley, J. Apr. 30, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                                       STATE OF VERMONT
SUPERIOR COURT                                                                                                  CIVIL DIVISION
Bennington Unit                                                                                       Docket No. 197-6-11 Bncv




                                                      Hall et al vs. Denio et al

                                               ENTRY REGARDING MOTION

Count 1, Declaratory Judgment (197-6-11 Bncv)
Count 2, Declaratory Judgment (197-6-11 Bncv)
Count 3, Property Dispute/Damages (197-6-11 Bncv)
Count 4, Property Dispute/Damages (197-6-11 Bncv)
Count 5, Property Dispute/Damages (197-6-11 Bncv)
Count 6, Property Dispute/Damages (197-6-11 Bncv)

Title:                 Motion TO SECURE COSTS AND ATTORNEYS FEES (Motion 12)
Filer:                 Christopher E. Denio
Attorney:              self-represented
Filed Date:            February 27, 2014

Response filed on 03/20/2014 by Attorney Jason P. Morrissey for Plaintiff Mary H. Maguire
Response filed on 04/02/2014 by Attorney Jason P. Morrissey for Plaintiff Mary H. Maguire
Response filed on 04/14/2014 by Attorney Frank (Fritz) Langrock for Defendant Christopher E.
Denio

The motion is DENIED.
                  Decision and Order on Motion for Court Costs and Fees

        Defendant seeks attorney’s fees and costs for successfully defending this action. The
underlying suit concerned a prescriptive easement. On May 21, 2013, after a bench trial, Judge
Carroll found for Defendant. Judge Carroll determined there was no prescriptive easement
because the use was not continuous before 1990. Judge Carroll determined Defendant gave
Plaintiff implied permission to use the land after 1990. On January 23, 2014, a three-justice
panel of the Vermont Supreme Court affirmed. See No. 2013-276. The Court found evidence to
support Judge Carroll’s decision of lack of continuous use and then implied permission.

        On February 27, 2014, Defendant, now self-represented, requested attorney’s fees and
costs under V.R.C.P. 54 and V.R.A.P. 39. He requested $17,143.85 in fees and costs for the trial
and $4,468.75 for fees and costs for the appeal. He attached billing statements from his former
attorney. On March 20, 2014, Plaintiffs opposed the motion and argued Defendant failed to
delineate what he claimed in costs versus attorney’s fees and also failed to state why the Court
should deviate from the American rule. On April 2, 2014, Plaintiffs filed a supplemental brief
that argued the requests were untimely. On April 14, 2014, Defendant filed a supplemental
brief that broke down his fees and costs by event but still did not specify what he sought in
court costs versus attorney’s fees.

        Under V.R.C.P. 54(d), the prevailing party may seek costs and attorney’s fees. “Costs
other than attorneys' fees shall be allowed as of course to the prevailing party…” V.R.C.P.
54(d)(1). The party may also make a motion for attorney’s fees. V.R.C.P. 54(d)(2)(A). A motion
for attorney’s fees must be filed within fourteen days of judgment. V.R.C.P. 54(d)(2)(B).

         The appellate rules provide a similar framework. Under V.R.A.P. 39(a)(2), if a judgment
is affirmed, then the costs are taxed against the appellant. The prevailing party may also seek
attorney’s fees for the appeal by filing a motion in the Superior Court within fourteen days of
the mandate from the Supreme Court. V.R.A.P. 39(f).

        The Court denies the motions for costs and attorney’s fees because they are untimely.
The Vermont Supreme Court held the consequence for an untimely request for attorney’s fees
is a denial. See Concord Gen. Mut. Ins. Co. v. Woods, 2003 VT 33, ¶ 17, 175 Vt. 212. Judge
Carroll issued her order for Defendant on May 21, 2013 and the Court issued judgment to
Defendant on May 28, 2013. Defendant did not file his motion for costs and attorney’s fees
until February 27, 2014. Defendant filed the motion eight months after the judgment, and the
deadline is fourteen days. See V.R.C.P. 54(d)(2)(B). The motions for costs and attorney’s fees
from the appeal are also untimely. The Supreme Court issued its decision on January 23, 2014,
but Defendant did not file his motion until one month later. See V.R.A.P. 39(f). The Court
therefore denies both motions as untimely. See V.R.A.P. 39(f); V.R.C.P. 54(d)(2)(B); Woods, 2003
VT 33, ¶ 17.

        Had Defendant filed timely requests, the Court would have denied the motion for two
reasons. First, Defendant failed to enumerate his costs and the Court cannot determine the
amount of court costs to which Defendant might have been entitled. See Lamoille Valley Prop.
Owner’s Ass’n v. Fuss, No. 2005-362, 2006 WL 5866262, *3. (Vt. Mar. 2006). More importantly,
Defendant has not demonstrated he is entitled to attorney’s fees. Vermont follows the
American Rule, which generally requires parties to bear their own attorney’s fees. Southwick v.
Rutland, 2011 VT 105, ¶ 6, 190 Vt. 324. The Court may award attorney’s fees for bad faith or
outrageous conduct. See Woods, 2003 VT 33, ¶ 18. In Fuss, the Vermont Supreme Court
affirmed a trial court’s refusal to award attorney’s fees in an easement dispute because there
was no bad faith. Id. at *3. Similarly, in this case, there is no sufficient articulation of bad faith
or outrageous conduct, thus no basis for an award of attorney’s fees as a matter of law. See
Woods, 2003 VT 33, ¶ 18. Thus, even if the Court considered Defendant’s untimely motion, it
would deny it as being without basis in fact or law.

So ordered.

Electronically signed on April 30, 2014 at 02:57 PM pursuant to V.R.E.F. 7(d).


______________________________________
John P. Wesley
Superior Court Judge
Notifications:
Jason P. Morrissey (ERN 4683), Attorney for Plaintiff Joseph H. Hall
Jason P. Morrissey (ERN 4683), Attorney for Plaintiff Mary I. Hall
Jason P. Morrissey (ERN 4683), Attorney for Plaintiff Scott Maguire
Jason P. Morrissey (ERN 4683), Attorney for Plaintiff Mary H. Maguire
Frank (Fritz) Langrock (ERN 1683), Attorney for Defendant Christopher E. Denio

wesley
