Appeal of Jenness & Berrie

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Appeal of Jenness & Berrie } Docket No. 134-7-04 Vtec
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Decision and Order on Request for Determination and Enlargement of Award of Costs
Appellant-Applicants Frederick L. Jenness and David S. Berrie appealed from the
decision of the Zoning Board of Adjustment (ZBA) of the Town of Dummerston denying
a zoning permit for the construction of a house on Stickney Brook Road. Appellant-
Applicants are represented by Timothy J. O’Connor, Jr., Esq. and Thomas W. Costello, Esq.;
the Town is represented by Robert M. Fisher, Esq.; and Interested Persons Judith and
Raymond Enello are represented by Walter G. French, Esq. The Court issued its decision
on the merits of this matter, in favor of the Town and Interested Persons Enello, on July 18,
2007.
In its July 27, 2006 Decision and Order on Cross-Motions for Summary Judgment,
the Court had denied Appellant-Applicants’ motion for summary judgment and had ruled
that the other parties’ summary judgment motions would be granted as of noon on August
8, 2006, based on the reasoning that,
even giving Appellant-Applicants the benefit of all reasonable doubts and
inferences, no genuine issue of material fact exists to contest that the use of
this segment of Stickney Brook Road in 1971 was not substantial enough to
functionally separate the use of Appellant-Applicants’ 1.1-acre parcel from
the 0.9-acre parcel on the other side of the road.
In that order, the Court cancelled the hearing on the merits then already scheduled for
August 31, 2006, but provided a mechanism by which Appellant-Applicants could apply
to reinstate the case for trial, as follows:
On or before August 7, if Appellant-Applicants submit an offer of proof,
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supported by appropriate affidavits, concerning specific evidence they would
present at trial regarding the use of Stickney Brook Road in 1971, the Court
will consider their motion to reinstate the case for trial; however, the parties
are advised that it would have to be reset no earlier than September or
October and would be conditioned upon payment of the other parties’ costs
associated with the present motions and associated with the rescheduling of
the trial.
The order went on to provide for further motions regarding the preservation of testimony
“[i]n the event that the case were to be reinstated for trial.”
This language in the July 2006 order warned that the Court intended to make the
other parties whole if the matter were to be reinstated for trial. As of the July 2006
summary judgment ruling, Appellant-Applicants had failed to come forward with
evidence in support of their claim regarding the use of the road in 1971. That is, the parties
were warned that, if Appellant-Applicants belatedly were to come forward with such
evidence sufficient to reinstate the matter for trial, they would have to cover the other
parties’ out-of-pocket expenses in connection with the otherwise-unnecessary summary
judgment motions ruled on in the July 2006 order. Those out-of-pocket expenses included
the fees paid to the other parties’ attorneys in connection with those motions, together with
any out-of-pocket expenses incurred by the other parties due to rescheduling the then-
already-scheduled (August 31, 2006) trial, such as non-refundable airline fares for
witnesses.
On September 20, 2006, the Court granted Appellant-Applicants’ motion to reinstate
the matter for trial, and required “[p]ursuant to our July 27, 2006 Decision and Order” that
the Enellos and the Town “submit by affidavit the costs to be paid by Appellant-Applicants
in connection with the reinstatement, together with an order approved as to form by all the
parties, or, if any of the costs are contested, notice that the evidentiary hearing will have
to include evidence on those contested issues.”
The Town and the Enellos did submit by affidavit their proposed costs in connection
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with the reinstatement of the matter for trial, in the amount of $924 for the Enellos and
$235.50 for the Town. No party suggested that any of the costs were contested or that
evidence would need to be taken on those costs at the reinstated trial, although the parties
also did not submit an order approved as to form.
Accordingly those costs, incurred by the Town in the amount of $235.50 and
incurred by the Enellos in the amount of $924 are HEREBY IMPOSED, to make those
parties whole as to the reinstatement of this matter for trial and in recognition that the 2006
summary judgment motions would have been unnecessary had Appellant-Applicants
timely come forward with evidence showing disputed material facts for trial.
The Enellos have now moved to enlarge the award to include their attorneys’ fees
incurred after the reinstatement of the matter for trial, including the expenses of the trial
itself. That motion is DENIED. “In general, [Vermont follows] the American Rule that
each party is responsible for its own attorney’s fees,” absent a statutory or contractual
exception. Harsch Properties, Inc. v. Nicholas, 2007 VT 70, ¶11 (citing DJ Painting, Inc. v.
Baraw Enters., Inc., 172 Vt. 239, 246 (2001)). However, as discussed in DJ Painting, the
Supreme Court recognizes the ability of the trial courts, founded in the equity power, to
award fees “as the needs of justice dictate,” 172 Vt. at 246–247, quoting In re Gadhue, 149
Vt. 322, 327 (1987); the type of conduct that warrants such an award occurs due to bad faith
conduct on the part of the unsuccessful party. In the present case, after the reinstatement
of the matter for trial, Appellant-Applicants’ conduct was not unreasonable or outrageous
so as to call for an award of attorneys’ fees.
Done at Berlin, Vermont, this 14th day of August, 2007.
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Merideth Wright
Environmental Judge
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