This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Orleans Unit, Civil Division. Robert P. Gerety, Jr., J.
Joslyn L. Wilschek of Primmer Piper Eggleston & Cramer PC, Montpelier, for Plaintiff-Appellee.
William L. Durrell and Nathan D. Rectanus of Bookchin & Durrell, P.C., Montpelier, for Defendant-Appellant.
Present: Dooley, Skoglund, Robinson and Crawford, JJ.,
and Zimmerman, Supr. J. (Ret.), Specially Assigned.
[¶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 plaintiff's 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 line 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 plaintiff's 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, 187 Vt. 652, 994 A.2d 1247, 2010 WL 712475 (Vt. 2010) (unpub. mem.).
[¶3] Meanwhile, plaintiff commenced a separate action in August 2008, alleging that between 1984 and 2008 defendant had trespassed on plaintiff's land, and damaged plaintiff's property by removing trees, topsoil, and a barbed wire fence. Plaintiff sought damages 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. 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.
[¶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 ...