Evans v. Cote

2014 VT 104, 107 A.3d 911, 197 Vt. 523, 2014 Vt. LEXIS 108
CourtSupreme Court of Vermont
DecidedAugust 29, 2014
DocketNo. 13-077
StatusPublished
Cited by34 cases

This text of 2014 VT 104 (Evans v. Cote) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Cote, 2014 VT 104, 107 A.3d 911, 197 Vt. 523, 2014 Vt. LEXIS 108 (Vt. 2014).

Opinion

Dooley, J.

¶ 1. Defendant appeals the superior court’s order concluding that defendant violated 13 V.S.A. § 3701(c) by intentionally knocking down a tree belonging to plaintiff and trespassing on plaintiffs land, and granting plaintiff $1 in damages plus attorney’s fees and costs. On appeal, defendant argues that plaintiff failed to demonstrate that defendant violated the statute, that nominal damages do not support an award of attorney’s fees, and that the court abused its discretion in awarding attorney’s fees of $22,406 based on $1 of actual damages. We affirm.

¶ 2. The record reveals the following. The parties have been neighbors since 1980. They became embroiled in what was described by the trial court as a “feud” based on a disagreement about the location of the boundary line dividing their properties. The deed defendant received from his predecessor in title described the boundary as being located at the center of a discontinued town highway, while plaintiff believed that the entire discontinued road was on his side of the boundary line. In response to disturbances plaintiff observed in the disputed area, he began sending letters to defendant asserting that defendant was trespassing on his property. The matter remained unresolved, and in 1990 plaintiff had a survey prepared that showed the boundary fine located where plaintiff believed it should be. Defendant did not agree with the location of the boundary, and in December 2006, plaintiff filed a suit, seeking a declaratory judgment that the land belonged to him. A default judgment was entered against defendant, and in March 2007 the court issued a declaratory judgment establishing the boundary between the properties as set forth in plaintiffs survey. In December 2008, defendant moved to vacate the default judgment, and the court denied the motion. This Court affirmed on appeal. See Evans v. Cote, No. 2009-326, 2010 WL 712475 (Vt. Feb. 25, 2010) (unpub. mem.).

¶ 3. Meanwhile, plaintiff commenced a separate action in August 2008, alleging that between 1984 and 2008 defendant had trespassed on plaintiffs land, and damaged plaintiffs property by removing trees, topsoil, and a barbed wire fence. Plaintiff sought [527]*527damages under various statutes, including treble damages for trespass and conversion of trees, 13 V.S.A. § 3606, attorney’s fees, id. § 3701, and a penalty and costs for removal of survey monuments, id. § 3834. Plaintiff also sought an injunction precluding defendant from entering plaintiff’s land. In response, defendant moved to dismiss, asserting that the prior default judgment was ineffective. The court denied the motion.

¶ 4. The court held a bench trial in December 2011. Following trial, the court found that defendant had removed topsoil and portions of a wire fence, and “cut, destroyed or otherwise removed significant numbers of trees located near the boundary between the two parcels.” Based on its findings that defendant had trespassed on plaintiff’s property and that there was a substantial probability that he would continue to do so, the court granted plaintiff’s request for a permanent injunction. As to damages, the court concluded that the statute of limitations barred any recovery for actions taken prior to August 2002, which was six years before the case was filed.2 The court found that the sole damage occurring after August 2002 that was supported by the evidence was that in 2008 defendant had “knocked down one dead but standing softwood tree” on plaintiff’s side of the boundary line. The court awarded damages of $1 for the felled tree, explaining that it could not determine the replacement value of a single tree from the evidence presented.3

¶ 5. In addition, the court awarded plaintiff attorney’s fees and costs under the unlawful mischief statute. 13 V.S.A. § 3701(f). The court found that the fees requested by plaintiff were reasonable, but that a downward departure was warranted because plaintiff had obtained a poor outcome in comparison to what was sought. Thus, the court made a 75% reduction in the requested amount, and awarded $22,406 in attorney’s fees and costs. Defendant moved to reconsider, arguing that a nominal damage recovery of $1 did not support an award of attorney’s fees under the statute. The court rejected defendant’s argument, concluding that recovery of attorney’s fees is not dependent on obtaining a certain monetary amount of damages.

[528]*528¶ 6. On appeal, defendant raises one main issue, that the court abused its discretion in the attorney’s fee award, but argues four rationales for his position: (1) the court abused its discretion in awarding a permanent injunction; (2) plaintiff failed to prove that defendant violated 13 V.S.A. § 3701(c); (3) the nominal damage award was not sufficient to support an award of attorney’s fees; and (4) the amount of attorney’s fees awarded is out of proportion to the damages received. We address the first two of these issues together because a deficiency in defendant’s appeal answers both arguments.

¶ 7. Defendant has not ordered a transcript of the trial on the merits, and therefore has waived any challenge to sufficiency of the court’s findings. V.R.A.R 10(b)(1) (explaining that it is appellant’s responsibility to order transcript and appellant “waives the right to raise any issue for which a transcript is necessary for informed appellate review”). Without the transcript, this Court assumes that the trial court’s findings are supported by the evidence. In re S.B.L., 150 Vt. 294, 307, 553 A.2d 1078, 1087 (1988); see Hoiska v. Town of E. Montpelier, 2014 VT 80, ¶ 9 n.*, 197 Vt. 196, 101 A.3d 890 (explaining that without transcript this Court could not review appellant’s argument that findings were unsupported by evidence).

¶ 8. Both of the first two issues involve whether the court’s findings and conclusions are supported by the evidence. For the first, defendant argues that the court abused its discretion in issuing a permanent injunction barring defendant from entering the real property that was the subject of the prior declaratory judgment action. A permanent injunction may be awarded in response to a continuing trespass because damages are inadequate to address the wrong. Begin v. Barone, 124 Vt. 421, 422, 207 A.2d 252, 254 (1965). “Vermont law is clear that even the threat of continuous trespass entitles a party to injunctive relief.” State v. Preseault, 163 Vt. 38, 43, 652 A.2d 1001, 1004 (1994). We review the trial court’s grant of an injunction under an abuse-of-discretion standard, and will not reverse unless the findings are not supported by the evidence and the court’s decision lacks any legal grounds to justify the result. Alberino v. Balch, 2008 VT 130, ¶ 7, 185 Vt. 589, 969 A.2d 61 (mem.).

¶ 9. Here, the court found that defendant had trespassed on the disputed property after August 19, 2002 “by making use of the [529]*529disputed road from time to time.” The court further found that there was a substantial probability that defendant would continue to trespass on the property in the future.

¶ 10. On appeal, defendant argues that the court abused its discretion because there was no evidence to demonstrate that defendant has threatened to. trespass after the 2008 incident involving defendant’s removal of the tree.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 VT 104, 107 A.3d 911, 197 Vt. 523, 2014 Vt. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-cote-vt-2014.