Evans v. Cote, 107 A.3d 911

Neighbors disputed boundary for decades; plaintiff obtained a 2007 declaratory judgment fixing the boundary in his favor after defendant defaulted and failed to vacate the judgment.
Plaintiff later sued (2008) for trespass and property damage spanning 1984–2008, seeking damages, treble damages, attorney’s fees under the unlawful mischief statute (13 V.S.A. § 3701), and an injunction.
At bench trial, the court found multiple past trespasses and damage but concluded the statute of limitations barred recovery for conduct before August 19, 2002.
The only compensable post‑limitations damage proved was defendant’s knocking down one dead softwood tree in 2008; the court awarded $1 nominal damages.
The court also granted a permanent injunction against future trespass and awarded attorney’s fees and costs under 13 V.S.A. § 3701(f), reducing the requested lodestar of $84,081 by 75% to $22,406.
Defendant appealed, arguing (inter alia) insufficiency of proof under § 3701(c), that nominal damages cannot support fee shifting, and that the fee award was disproportionate to $1 in damages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of permanent injunction	Plaintiff showed continuing trespass risk justifying injunction	Injunction was an abuse of discretion; no evidence of continued trespass after 2008	No abuse of discretion; findings (uncontested on appeal due to no transcript) support injunction for continuing trespass
Violation of 13 V.S.A. § 3701(c) (intentional damage under $250)	Defendant intentionally felled a dead tree on plaintiff’s side, satisfying elements	Defendant acted to improve property, not intentionally damage it	Court’s findings satisfied statute; appellate review defers without transcript; violation upheld
Whether nominal damages ($1) bar award of attorney’s fees under § 3701(f)	Fee shifting authorized where a person “suffers damages”; statute contains no minimum damage threshold	Nominal damages are insufficient; fee statutes should require vindication of significant public purpose or meaningful relief	Fees may be awarded even when damages are nominal; statutory text and scheme permit fee shifting for any proven damage
Reasonableness of $22,406 fee award given $1 damages	Fees were reasonable given litigation complexity; court reduced lodestar 75% for poor damages result	Fee award is a windfall; should be further reduced because damages were nominal and largely time‑barred	Not an abuse of discretion; court used lodestar, explained a 75% reduction, and reasonably considered case demands rather than strict proportionality

Begin v. Barone, 207 A.2d 252 (Vt. 1965) (continuing trespass can justify permanent injunction)
State v. Preseault, 652 A.2d 1001 (Vt. 1994) (threat of continuous trespass entitles party to injunctive relief)
Clark v. Aqua Terra Corp., 329 A.2d 666 (Vt. 1974) (nominal damages appropriate to recognize invasion of property rights)
Kwon v. Eaton, 8 A.3d 1043 (Vt. 2010) (lodestar method and factors for determining reasonable attorney’s fees)
John Larkin, Inc. v. Marceau, 959 A.2d 551 (Vt. 2008) (injunctive relief and nominal damages available upon showing direct invasion of property)
Anderson v. Johnson, 19 A.3d 86 (Vt. 2011) (award of fees under a fee‑shifting statute may require vindication of broader public purpose when no damages are proven)