On Appeal from Superior Court, Chittenden Unit, Civil Division Dennis R. Pearson, J.
Robert E. Fletcher and Eric G. Derry of Stitzel, Page & Fletcher, P.C., Burlington, for Plaintiff-Appellee.
Katherine E. McNamara, Ticonderoga, New York, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. The Town of Milton successfully brought an action to enforce a town order requiring defendant Armand Brisson to remediate problems with his residence that constituted a public health hazard. Defendant does not contest either the civil penalty or the compensatory costs for engineering fees assessed against him by the court, but contends that the court's award of attorney's fees was neither authorized under the applicable statute nor warranted under an equitable exception to the American Rule requiring each party to bear the cost of its own attorney's fees. We agree and therefore vacate the attorney's fee award.
¶ 2. The facts of this case are not in dispute. Defendant was the owner of a two-story brick structure built around 1850 and located in the Town of Milton at the intersection of Main Street and U.S. Route 7. He had lived in that building for most of his life. At the time of the events in question, he was living on the second floor of the building and utilizing the large attic for storage, while renting the first floor for use as a small bar/restaurant.
¶ 3. On May 6, 2012, the Milton Police Department notified the Town's deputy health officer that bricks were falling off the western exterior of the building onto the street and sidewalk below. After confirming this and observing that a part of the western brick wall was bulging out, the health officer issued an emergency health order later that same day condemning the building and declaring it unfit for any use or occupancy. See 18 V.S.A. § 127(a) ("A health officer may, without a prior hearing, issue an emergency health order when necessary to prevent, remove, or destroy an imminent and substantial public health hazard, or to mitigate an imminent and substantial significant public health risk."). The order required defendant to hire a structural engineer within twenty-four hours to examine the building and recommend necessary repairs, and to complete those repairs within seven days.
¶ 4. The next day, the person who served as the Town's zoning administrator, primary health officer, and secretary for the local health board visited the site with representatives from the Milton Police Department and the Vermont Agency of Transportation (AOT). Over the next several days, additional bricks fell and the bulged area of the wall collapsed. On May 11, AOT workers installed concrete "Jersey barriers" along the western side of the building adjoining Route 7 as a buffer zone.
¶ 5. Because there was a bar/restaurant on the ground floor, the building was a public building subject to state codes. As a result, the regional assistant fire marshal for the Vermont Department of Public Safety, along with the town health officer and defendant, inspected the building on May 11, only to learn that the bar/restaurant had recently ceased operations. The fire marshal and health officer performed a visual inspection of the interior and exterior of the building's first floor, but defendant did not permit access to his living quarters on the second floor and in the attic.
¶ 6. Following the site visit, the state fire marshal issued an initial report prohibiting all public use or occupancy of the building. Apart from confirming apparent structural defects in the supporting walls, the report noted signs of heavy rotting in the roof area and damage to the slate roof, as well as moisture damage in various interior areas. The report recommended a structural evaluation and electrical inspection to be completed by May 18.
¶ 7. On May 21, the town board held its required hearing on the May 6 emergency order. See id. § 127(c) ("A person to whom an emergency health order is directed shall be given the opportunity for a hearing within five business days of the issuance of such order."). Defendant appeared and acknowledged that he had taken no action in response to the May 6 order. At the conclusion of the hearing, the town board issued an order finding that "[a] portion of the brick wall on the northwest corner of the building is collapsing into River St./US Route 7, a condition that endangers passing motorists and pedestrians." The order further found the condition constituted "an immediate and substantial public health hazard due to the imminent danger of a collapse, the detrimental effect such a collapse would create on the structural integrity of the remaining building, and the building's close proximity to River Street/US Route 7, and Ice House Road." The town board ordered that the building remain uninhabited until repaired to the satisfaction of the board, that defendant begin work to stabilize and repair the structure within twenty-four hours, and that the structure be demolished if defendant did not commence the repair work within twenty-four hours.
¶ 8. Defendant appealed the May 21 order to the state board of health, which considers such appeals de novo. Id. § 128 (providing that any person aggrieved by local health board order may appeal to state board of health, which shall consider matter de novo in contested case hearing). On July 30, 2012, after a contested hearing, the state board affirmed the Town's order, concluding there was a continuing risk of falling brick and further building collapse which posed a significant public health risk. Meanwhile, on June 7, 2012, the Town filed the instant action seeking to enforce the local board's May 21 order by way of a preliminary injunction. On June 21, following a hearing, the superior court issued a preliminary injunction ordering defendant to: (1) immediately remove loose brick on the west wall and install a temporary framework to support the brick above the area where the collapse occurred; (2) install a protective tarp over the west wall of the building pending completion of the repairs; (3) rebuild the missing portion of brick within sixty days; (4) install a protective tarp over the south wall due to the Town's concerns over some cracking and movement of brick there; and (5) contract with his engineer to provide guidance and oversight as to the building's repair.
¶ 9. On September 9, 2012, the Town filed a motion for contempt based on defendant's failure to comply with the preliminary injunction. A hearing on the motion was held on November 27, 2012. At the conclusion of the hearing, which defendant did not attend, the superior court issued an order finding him in civil contempt for a willful violation of the court's previous order. The court acknowledged that defendant had filled in new brick on the west side of the building where the collapse had occurred, but found that defendant had not yet done masonry work on the south wall of the building or hired a structural engineer. The court ordered as follows: (1) town representatives were authorized to enter the building on December 3, 2012 to conduct a structural inspection of the interior and exterior of the building; (2) defendant was required to remove rubble and scaffolds from the west side of the building within five days so that the Jersey barriers could be removed; and (3) the Town would be awarded attorney's fees, not to exceed $600, as a sanction incurred in the contempt motion.
¶ 10. Defendant sought reconsideration of the November 27 order, and following a hearing, the superior court issued a December 19, 2012 order continuing the contempt hearing to mid-January 2013. In the order, the court acknowledged the testimony of defendant's contractor, who explained what repairs had been done and what work still needed to be done before the scaffolding and Jersey barriers could be removed. The court indicated that it would consider lifting the attorney's fee sanction if a December 27 site visit by the town health officer went well and there was a solid plan to repair the building's remaining problems.
¶ 11. On February 13, 2013, the superior court held a hearing on defendant's motion to reconsider its contempt order. Two days later, the court issued an entry order denying the motion for reconsideration, stating that the masonry repairs ordered on June 21, 2012 still had not been completed. The court ordered defendant, by July 1, 2013, to: (1) complete the masonry repairs on the west side of the building; (2) repair fascia and eaves showing signs of rot; and (3) repair the slate roof to prevent potential injury to passersby. The court deferred any final ruling on its request for attorney's fees, stating that if defendant completed the required work in a professional manner, "it is likely that he will be relieved of the obligation to pay the legal fees." The court stated, however, that "[i]f the work is not performed-or is performed in an inadequate manner-the court will require him to pay the legal fees as a sanction for the prior contempt." On March 19, 2013, the court granted the Town's motion to amend its February 15 order to require masonry repairs to the south side of the building as well as the west side.
¶ 12. Following a hearing on August 19, 2013, the court ordered that before October 15, 2013, "defendant shall complete repointing of the brick façade, soffit and fascia repair, and completion of the repair of the metal cap along the peak of the roof." The court set a status conference for mid-October 2013 to determine whether defendant had "completed repairs sufficient to meet the concerns raised by the Town under 18 V.S.A. § 130 of hazards to the public health."
¶ 13. By the time the status conference was held on October 21, a new judge had been assigned to the case. Following the status conference, the court noted several repairs that had been done and several that still needed to be done, but concluded that the specific tasks that the August 19 order required of defendant had not been substantially completed.
¶ 14. In the spring of 2014, the superior court granted the Town's motion to conduct a more invasive structural assessment of the building. That assessment took place on June 4, 2014, and a detailed report was filed three weeks later. The report noted that the load-bearing capacity of the second floor was well below code requirements and that there was some damage to the slate roof. The report indicated that the brick work and fascia issues in both the south and west areas of the building had been adequately addressed and repaired, but nonetheless recommended that no public use or occupancy of the building be permitted until defendant addressed load-bearing issues concerning the second floor and attic, and a more thorough investigation of the roof was done.
¶ 15. A final hearing on the Town's motion for sanctions and penalties pursuant to 18 V.S.A. § 130 was held on July 31, 2014. On December 1, 2014, the court issued a decision and judgment prohibiting defendant from any and all public use of the building and assessing against defendant $22, 256 that included a civil penalty of $1788 ($2 for each day defendant was clearly in violation of the Town's health order affirmed on July 30, 2012), $7886 as reimbursement for the Town's out-of-pocket engineering fees, and $12, 582 in attorney's fees.
¶ 16. The court acknowledged the determination in its October 21, 2013 order that defendant had complied with the specific requirements of the August 19, 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." The court noted in particular load-bearing issues which could not have ...