Becky Nystrom, Scott Nystrom and Laurie Nystrom v. Casey J. Hafford ( 2013 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2012-469
APRIL TERM, 2013
Becky P. Nystrom, Scott Nystrom and } APPEALED FROM:
Laurie Nystrom }
}
} Superior Court, Windham Unit,
v. } Civil Division
}
}
Casey J. Hafford } DOCKET NO. 566-10-10 Wmcv
Trial Judge: John P. Wesley
In the above-entitled cause, the Clerk will enter:
Defendant Casey Hafford appeals pro se from the trial court’s order, following a remand,
that denied his request for attorney’s fees. We affirm.
The facts underlying this dispute are set forth in Nystrom v. Hafford, 2012 VT 60.
Briefly restated, plaintiff Becky Nystrom sought to partition real property that she jointly owned
with defendant. Defendant moved to join Becky’s parents in the action as they had advanced
labor, materials, and money to construct the house in question. Parents then raised claims
against defendant for breach of contract and unjust enrichment, and father raised a claim under
the Prompt Pay Act (PPA). Following a bench trial, the court assigned Becky the property
contingent on her paying defendant a certain sum. The court rejected father’s PPA claim for
payment for his work on the house, but entered judgment in parents’ favor for $33,048 they had
contributed out-of-pocket for the project. It denied defendant’s request for attorney’s fees.
In his first appeal, defendant argued that he was entitled to attorney’s fees under the PPA.
We remanded to the trial court for the limited purpose of considering defendant’s attorney’s fee
claim. In reaching our conclusion, we found that father’s PPA claim was based solely on his
labor in constructing the house, and that the remaining claims in the case did not arise from a
common core of facts. We indicated that, on remand, the “trial court should make a reasonable
effort to award [defendant] legal fees associated with father’s PPA claim for reimbursement for
labor in connection with the construction project, as well as any other claims by father resting on
the same core set of facts.” Id. ¶ 25.
The trial court directed defendant to present his claim for attorney’s fees with references
to the record to support the claimed amount. Defendant filed a short response, and included an
affidavit from his trial attorney and counsel’s itemized billings from January 1, 2011 through
August 31, 2012, totaling $46,579.50. According to counsel, defendant estimated that at least
75% of the total bill, or $37,469.85, was directly attributable to the successful defense of father’s
PPA claim and related claims for his labor because they involved a majority of the counts in
plaintiffs’ amended complaint, they hindered the settlement of the case at mediation, and they
complicated the case thereafter. Father challenged the sufficiency of defendant’s filing, arguing
that defendant failed to cite a single reference in the record directly related to the PPA claim and
that he thereby failed to comply with the court’s order. Father maintained that it was not his
burden to search counsel’s billings or decipher the entries for references to the defense of the
PPA claim, or specific references to parents. Father indicated that $2276 in attorney’s fees might
be appropriate, but he nonetheless asked court to deny defendant’s claim for lack of any
demonstrated support in the record.
Defendant filed a supplemental memorandum in support of attorney’s fees, but he offered
no further specificity as to which items of the billings he claimed to be directly related to the
defense of the PPA claim, or any other aspect of the case concerning father’s claim for the value
of his labor. Defendant did not respond to father’s suggestion that $2276 in fees might be
supportable. Instead, defendant asserted that it was “difficult, if not impossible, to say with
mathematical certainty how much time was due solely to [father’s] labor claims.” He maintained
that “all the claims arose from the same common core of facts concerning the costs of
construction of the house and whether there was a gift made in contemplation of marriage.”
The court found that defendant failed to establish his entitlement to fees. His claim for
75% of counsel’s fees was wholly unsupported by any reference to the record. He made no
effort to relate his analysis to any of the contemporaneous records of his invoices for legal
services provided. He did not supply a trial transcript or any deposition transcripts to bolster his
claim that the substantial portion of the evidence related to a common core of facts associated
with the PPA count. Instead, his analysis appeared to be confined to the observation that the
requested award was reasonable because a majority of the claims in the amended complaint
involved father’s claims for funds advanced for construction and his labor, and that the amount
of his claim for labor far exceeded the other amounts claimed by the parties. The court found
this logic unpersuasive, particularly as it had no support in the record. The court also rejected
defendant’s assertion that it “could in fact award him all of his attorney’s fees due to the
common core of facts.” The court found this assertion directly contrary to this Court’s opinion.
See id. ¶ 22.
In reaching its conclusion, the court recognized that defendant did not need to support his
claim with absolute mathematical precision, and that some degree of approximation was likely
inescapable. Nonetheless, defendant’s extravagant claim made in apparent derogation of this
Court’s opinion, as well as trial court’s prior characterization of the allocation of trial time,
afforded no rational framework for further refinement of his fee petition except by resort to rank
guesswork. The court noted that defendant did not endorse father’s suggested approach as to
which billings might be attributable to the defense of the PPA claim, and it declined to find that
defendant could meet his burden of proof through father’s speculative suggestions. Defendant
was required to establish a reasonable basis from which the court could make a determination of
fees. Because he offered no approach other than the unsupported and unreasonable estimate of
75% of the total billing, the court denied his claim. This appeal followed.
On appeal, defendant argues that he offered adequate support for his fee request. He
maintains, as he did below, that father’s claim for his labor hindered the case from the beginning.
He states that he is entitled to an award of attorney’s fees as a matter of law. Defendant also
suggests that the court could have used the lodestar analysis to determine attorney’s fees.
Defendant asks that he be awarded $37,469.85 or, alternatively, all of his attorney’s fees.
We find no error in the court’s decision. See Fletcher Hill, Inc. v. Crosbie, 2005 VT 1,
¶ 3, 178 Vt. 77 (Supreme Court reviews “trial court’s ruling on attorney’s fees . . . for abuse of
discretion). As set forth above, defendant failed to provide the trial court with any reasonable
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basis from which to determine an appropriate attorney’s fee award. His claim for 75% of his
total fees was unreasonable and not supported by any specific references to the record. His
general assertion that father’s claim for his labor “hindered the case from the beginning” does
not suffice. As we made clear in our prior decision in this case, moreover, father’s claim for
labor did not share a common core of facts with the principal claims in the case. See Nystrom,
2012 VT 60, ¶ 22. The lodestar approach is of no avail because the court had no way to
determine the number of hours reasonably expended by counsel in response to father’s claim for
labor. See L’Esperance v. Benware, 2003 VT 43, ¶ 22, 175 Vt. 292 (stating that, in determining
the reasonableness of a fee award, courts must begin with the lodestar figure, which is the
number of hours reasonably expended on the case multiplied by a reasonable hourly rate). To be
entitled to attorney’s fees, defendant needed to provide the court with some mechanism by which
it could ascertain a reasonable award, and he failed to do so here. His fee request was therefore
properly denied.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
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