Pelkey Subdivision Amendment - Decision on Motion for Atty's Fees

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 119-9-16 Vtec
Pelkey Subdivision Amendment
ENTRY REGARDING MOTION
Count 1, Municipal DRB Subdivision (119-9-16 Vtec)
Title: Motion for Attorney’s Fees (Motion 4)
Filer: Town of Westford
Attorney: John H. Klesch
Filed Date: February 14, 2019
Response in Opposition filed on 03/08/2019 by Attorney Brian P. Monaghan for Appellants
Theodore and Michelle Pelkey
The motion is DENIED.
The present motion relates to a Corrected Stipulated V.R.C.P. 58 Judgment Order issued
by this Court on June 21, 2017. This Corrected Judgement Order memorializes a settlement
agreement between Appellants Theodore and Michelle Pelkey (“Appellants”) and the Town of
Westford (“Town”) pertaining to Appellants’ request to modify the building envelope depicted
on his approved subdivision plan. Appellants filed a motion to reopen and enforce the Corrected
Judgment Order on January 17, 2019. We respond to the substantive assertions in their motion
in a separate Entry Order that issues alongside the present Order. We here consider the Town’s
motion for attorney’s fees, which is premised on the assertion that Appellants’ motion to reopen
is frivolous, vexatious, or advanced for an improper purpose.
When considering whether attorney’s fees are appropriate, Vermont’s courts generally
follow the “American Rule,” which requires parties to bear their own legal costs, unless a statute
or contract term provides otherwise. DJ Painting, Inc. v. Baraw Enters., Inc., 172 Vt. 239, 246
(2001).
The Town does not argue that a statutory provision or the Corrected Judgment Order
obligate Appellants to pay its attorney’s fees. Instead, the Town argues for fees under a rarely-
applied exception to the American Rule, which provides trial courts with discretion to sanction
parties in the form of attorney’s fees reimbursement for “bad faith or vexatious actions or
conduct which is unreasonably obdurate or obstinate.” Agency of Nat. Res. v. Lyndonville Sav.
Bank & Tr. Co., 174 Vt. 498, 500 (2002) (citing Cameron v. Burke, 153 Vt. 565, 576 (1990)). This
exception to the American Rule is only appropriate in “exceptional cases as justice requires.”
Cameron, 153 Vt. at 576.
Pelkey Subdivision Amend., No. 119-9-16 Vtec (EO on Motion for Attorney’s Fees) (June 28, 2019) Page 2 of 2.
While we ultimately deny Appellants’ motion to reopen in the contemporaneous Entry
Order, we conclude that the motion was not so spurious as to qualify this case as exceptional.
The record does not contain any indications of malicious intent or bad faith. See, e.g., Lamoille
Valley Prop. Owners Assoc. v. Fuss, No. 2005-362, slip op. at 3 (Vt. Mar. 2006) (mem.). We
therefore decline to bypass the well-settled American Rule.
So Ordered.
Electronically signed on June 28, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
Brian P. Monaghan (ERN 1186), Attorney for Appellants Theodore and Michelle Pelkey
John H. Klesch (ERN 2043), Attorney for the Town of Westford
Interested Person Thomas White
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