Town of Milton Board of Health v. Brisson, 2016 VT 56
Whenever I see a case involving a Board of Health, my mind jumps straight to those homes in Hoarders that get condemned. Have you ever watched that show? There is nothing like curling up on a Friday night with a bottle of wine and watching Hoarders. Seriously, you will feel so much better for not washing your dishes or vacuuming. Alas, this case is not so much about keeping 60 cats in your bedroom as it is about attorney’s fees.
The (lengthy) facts of this case are straightforward and really not in dispute. And since the legal analysis in this case is pretty short, the facts are really the only interesting part of this case. Defendant owned a two-story brick structure. The bottom floor housed a small bar and restaurant, the defendant lived on the second floor, and the attic was used for storage. In May 2012, the police department notified the health officer that some bricks were falling off the building and onto the sidewalk. The health officer looked at the building, said, “Yep, those bricks are falling on the sidewalk,” and issued an emergency health order condemning the building and declaring it unfit for use or occupancy. The defendant needed to hire a structural engineer to figure out what was going on, and complete all repairs within seven days.
Meanwhile, some more town and state officials came to look at the building. They installed some “Jersey barriers” to create a buffer zone, and determined that the bar/restaurant on the first floor was no longer in operation. The defendant would not allow the officials to inspect his living quarters or the attic. The state fire marshal issued a report saying the building could not be used for occupancy or public use due to the structural problems, heavy rotting in the roof, and moisture damage. The town board held its required hearing on the emergency order where the defendant acknowledged he did not do anything in response to the health officer’s order. The town board issued an order stating the brick wall collapsing endangers the passing motorists and pedestrians, which was an “immediate and substantial public health hazard.” The town board ordered the building remain uninhabited until repairs were made, that the defendant start those repairs within 24 hours, and, if he didn’t make those repairs, the building was to be demolished.
Defendant appealed to the state board of health, and, after a contested hearing, the state board affirmed the town’s order. While that appeal was pending, the town sought a preliminary injunction in the superior court to enforce the town’s order. The superior court issued such an order with multiple conditions to secure and repair the building. Two months went by, and the defendant did nothing, so the town filed for contempt. Defendant did not attend the hearing, and the superior court found him in civil contempt. Defendant had filled in new brick on one side, but had not complied with the rest of the order. The court allowed the town representative to enter and inspect the building, and awarded the town attorney’s fees, not to exceed $600 for the contempt motion.
Defendant asked for reconsideration of the court’s underlying order and the new contempt order. The court held a hearing with the defendant’s contractor testifying to the work that had been completed and what work was still left. The court indicated it might lift the attorney’s fee sanction if a visit from the town health officer went well and there was a solid plan to fix the remaining issues. It continued the contempt hearing until mid-January. In February 2013, the court denied defendant’s motion to reconsider the contempt order on the basis that the masonry repairs ordered back in June had still not been completed. It deferred any final ruling on the attorney’s fees, saying that if defendant finished the repairs in a professional manner, it is “likely” he would not have to pay those fees. But, if the work was not performed, or performed poorly, he would have to pony up the dough.
In August 2013, the court ordered that defendant needed to complete additional repairs before October 2013. When the October 2013 status conference came around, a new judge had been assigned. That judge noted several repairs had been done, but more were needed, and the specific tasks in the August 2013 order were not substantially completed. In the spring of 2014, the superior court allowed the town to conduct a more invasive structural assessment of the building. The assessment took place in June, and a detailed report filed three weeks later. The report indicated that while the brick work had been repaired, the load-bearing capacity of the second floor was below code requirements, and there was roof damage. The report concluded the building was still not fit for public use or occupancy.
In July 2014, the court held a final hearing on the town’s motion for sanctions and penalties. In December, the court issued a decision prohibiting the defendant from any and all public use of the building. It also assessed against defendant $22,256, including a civil penalty of $1,788 ($2 per day for being in violation of the health order from July 2012), $7,886 for the Town’s engineering fees, and $12,582 in attorney’s fees. The court also acknowledged that defendant had complied with specific requirements from the October 2013 order, but stated that “those items alone had never been the sole concern of the Town or the State with regard to over-all safety and risk of public injury because of the deteriorated condition of the Defendant’s building.”
So with all of that hoopla, one would thing that there is a whole bunch of stuff up for appeal, right? Nope. The only thing defendant contends is that this statute does not authorize attorney’s fees. There is an “American Rule” to attorney’s fees that means everybody bears the cost of their own litigation. But, the above-mentioned statute allows the government to get reimbursed for expenditures for the “investigation and mitigation” of a public health risk. The town contends that attorney’s fees are a governmental expenditure and included in the statute. The SCOV says, “Nope.”
When the courts look at a statute, it tries its best to go with the Legislature’s intent. If there is doubt as to the intent, the court looks to the “whole and every part of the statute, the subject matter, the effects and consequences, and the reason and spirit of the law.” So if the Legislature isn’t clear, it’s really anybody’s guess. The SCOV concedes at the outset that a broad interpretation of the statute could include attorney’s fees in with “expenditures.” But, it could be interpreted narrowly to include only those involved in the investigation, mitigation, abatement, or removal of public health risks, like engineers and debris-removal folks. Because attorney’s fees are unique, the SCOV concludes that the Legislature probably did not intend to include those in the statute.
Usually, when the Legislature authorizes the award of attorney’s fees (beyond what common law permits), it explicitly does so. For instance, a tenant can recover attorney’s fees when landlords fail to fix habitability issues. Attorney’s fees are also common in worker’s compensation cases when a claimant wins in the superior or Supreme Court. Then there is some case law that says, more or less, that the Legislature knows how to say if it means attorney’s fees, so the court is reluctant to imply it. The Legislature is a big kid, it knows what it’s doing. But, it’s even more important in cases where it would establish a statutory meaning that is far apart from a common law rule – in this case, the American Rule.
The town argues that alternatively, even if the statute did not authorize an award of attorney’s fees, it was within the superior court’s discretion to award the fees based on and equitable exception to the American Rule. The SCOV again says no. There is a flexible exception to the American Rule, such as where one party acted in bad faith and this caused another to incur litigation expenses in an unnecessary judicial proceeding. The standard of review for an award of attorney’s fees is abuse of discretion. However, departure from the American Rule must only be used in exceptional cases, where justice demands an award of attorney’s fees, which is not present in this case. The superior court made no finding of bad faith, vexation or wanton conduct of defendant’s part. The record shows that defendant was a man of limited means, but nevertheless attempted to comply with the town’s health order.
Even though the SCOV gives great deference to the superior court’s discretion with respect to attorney’s fees, the record does not support a finding of bad faith warranting an award of attorney’s fees. Thus, the SCOV reverses the award of attorney’s fees, and affirms the rest of the judgment.
In his dissent, Justice Dooley with Justice Eaton joining, finds that the statutory language is actually a clear directive to authorize collection of attorney’s fees. The dissent also criticizes the SCOV for relying on a Pennsylvania opinion, despite many Vermont opinions to the contrary. The dissent’s reading of the statute is that the Legislature allowed the recovery of attorney’s fees as a “governmental expenditure.” The dissent also sees no difference between an expenditure for an engineer and an expenditure of an attorney. Each is involved in the investigation, mitigation, and abatement of the hazard, with the attorney determining what must be done legally to eliminate the hazard and require the owner to make repairs. It criticizes the majority for requiring the use of the exact language “attorney’s fees” in the statute in order for the plaintiff to recover attorney’s fees. As a practical matter, the Legislature probably decided not to itemize every time of expense, and decided to lump it together under a general term of “governmental expenditures.”
In any event, add this to list of statutes the Legislature can clarify for us in the future.
>Frequently Asked Questions about Fees and Costs in Family Law cases
• How much will my case cost? It depends. In family cases, attorneys charge by the hour, or a portion thereof, for their time, and for paralegal time. The total amount of fees charged depends on the number of issues involved, the amount of discovery, the number of hearings, and the obstructionism of the opposing party. Many of these factors are out of the control of you and your attorney, so it can be difficult to control costs. A divorce where the parties can reach an early agreement may cost as little as a few thousand dollars; a case where there are multiple issues, hearings, discovery, and obstructionism of the other party may cost well in excess of $100,000.00.
• My attorney bills me a minimum amount no matter how short the time spent. Why? Most attorneys provide for a minimum amount of time in their billing structure, usually either 1/10 of an hour, ten minutes, or ¼ of an hour. Therefore, if you have a three minute phone call with your attorney, he or she may charge you up to fifteen minutes for that call. In fairness to the attorney, one of the most difficult parts of our practice is “capturing” all of the time we spend on a case. For example, it is rare, even with minimum time protocols, for attorneys to be able to capture all their billable hours they spend in a day for clients, particularly if they are dealing with multiple cases during the day. Minimum fees help to bridge that gap.
• Why are the attorney’s hourly rates so high? It’s a matter of simple economics. An attorney, as with any businessperson, has overhead, including rent, utilities, staff salaries, law books and computers. The hourly rate reflects all of those costs in addition to the attorney’s salary.
• How do I minimize costs? There are several ways to keep fees down.
o Gathering and organizing financial documents is a big cost saver. Talk to your attorney about what documents you should be gathering and how he or she wants them organized.
o Keeping the temperature cool: This means trying not to do anything that will provoke the other side, if possible. When your soon to be ex-spouse becomes angry, costs invariably go up. For example, throwing your spouse’s clothes on the lawn may turn out to be an expensive act of revenge when your spouse calls his or her attorney, and the hope of a negotiated settlement goes out the window. Another red flag: dating or living with a new girlfriend or boyfriend does not matter to the court, but will anger your spouse—usually resulting in a more contentious divorce.
o Negotiating a settlement: litigation is very expensive; negotiated settlements are almost always less so. Even if you cannot agree on everything, try to agree upon as much as possible, and you have a right to litigate the rest. This does not mean, however, that you need to agree for agreement’s sake. If your spouse is being unrealistic, then a hearing may be necessary.
• Can I pay my attorney on a contingency fee basis? The law does not allow lawyers to represent clients in family cases on a contingency fee without prior court approval. In addition, many family law cases involve other issues besides property awards; thus a contingency fee would not apply to those cases.
• What other expenses can I expect in a family law case? The most costly expenses you can expect are for expert fees and deposition costs, if you need an expert or you need to take someone’s deposition. Some experts attorneys use are: private investigators, forensic psychologists, property appraisers, actuaries to determine values of pensions or annuities, financial experts. Those costs may run from hundreds to thousands of dollars, but in a particular case may be worth the investment.
• Do attorneys double bill when they are doing work for two clients? Attorneys are prohibited from double billing by the Code of Ethics. If Attorneys are traveling to court for two hearings, for example, they cannot bill both clients for the time on the road. We pro-rate travel time when we are traveling to court for more than one client.
• Why am I not credited with interest on the money in attorneys client’s trust accounts? Most attorneys require that an advance fee be paid in cases involving hourly charges. That advance fee is placed in a clients trust account, and the funds are transferred to the operating account when an attorney spends time or has an expense in your case. The Code of Ethics requires lawyers to place their clients trust monies into special interest bearing accounts called IOLTA accounts. With those accounts, the banks have a legal obligation to pay the interest directly to the Association. The interest earned goes to people or organizations with legal needs. In Vermont, most of the interest earned on IOLTA accounts is paid by the Vermont Bar Association to Vermont Legal Aid to help represent needy clients, and to other legal causes.
• Can the other party be ordered to pay my attorneys fees in family cases? Yes. The court can order a spouse or ex-spouse to pay your attorneys fees. It is up to the court to decide. The court may or may not grant your request. The court will only order a spouse to pay attorneys fees when there is large gap between the parties’ income, and when you can show you are unable to pay your fees. My advice, however, is not to count on this. It is rare for Vermont courts to award attorneys fees.
• Attorneys are expensive; why isn’t it better to negotiate a settlement with my spouse myself? It is true that divorce is expensive. However, there is a great deal at stake: your children’s future and your financial security for years to come. Lawyers are paid to look into the future and determine the impact of the terms of a settlement on you and your family. In addition, if you are in an emotional breakup—and what breakups aren’t?—it is difficult to negotiate a settlement that takes into account all of the issues–and is fair and equitable. If you want to negotiate a settlement with your spouse yourself, then my advice is to at least have an attorney review the settlement before you sign. Most attorneys will be willing to give you advice about a settlement you have negotiated with your spouse. It will be money well spent.