Town of Milton Board of Health v. Armand Brisson
147 A.3d 990
Vt.2016Background
- Town of Milton issued an emergency health order (May 6, 2012) condemning Brisson’s 1850 brick building after falling bricks and a bulging wall created an imminent public-safety hazard.
- Town required a structural engineer and short-term repairs; state and town officials inspected, installed Jersey barriers, and affirmed prohibition of public use.
- Town obtained a preliminary injunction (June 21, 2012) ordering specific stabilization and repair tasks; Brisson repeatedly failed to complete all required repairs and did not always allow inspections.
- After multiple hearings and orders (2012–2014), the superior court entered final judgment (Dec. 1, 2014): permanent injunction against public use, civil penalty ($1,788), reimbursement for engineering fees ($7,886), and attorney’s fees ($12,582).
- On appeal Brisson challenged only the attorney’s fees award, arguing § 130(b)(5) does not authorize attorneys’ fees and that the equitable exception to the American Rule did not apply.
- The Vermont Supreme Court affirmed the injunction, civil penalty, and engineering-fee reimbursement, but vacated the attorney’s-fee award.
Issues
| Issue | Plaintiff's Argument (Town) | Defendant's Argument (Brisson) | Held |
|---|---|---|---|
| Whether 18 V.S.A. § 130(b)(5) authorizes reimbursement of governmental "expenditures" to include municipal attorney's fees incurred enforcing public‑health orders | "Governmental expenditures" in § 130(b)(5) plainly includes attorney’s fees incurred in enforcement; plain meaning supports recovery. | The statute authorizes reimbursement for direct remediation/investigation costs (engineer, contractors), not litigation/attorney’s fees; Legislature would have said "attorney’s fees" if intended. | Court held § 130(b)(5) does not authorize attorney’s fees; term is ambiguous but ordinary construction and legislative practice favor a narrower reading excluding attorneys’ fees. |
| Whether the superior court could award attorney’s fees under the equitable exception to the American Rule (bad‑faith/vexatious conduct) | Even if statute doesn’t authorize fees, equitable powers permit fees where justice requires; here government's enforcement efforts justified fees. | Attorney’s fees exception applies only in exceptional cases showing bad faith, vexatious or oppressive conduct; record does not show such conduct — Brisson attempted some compliance and had limited means. | Court held superior court abused discretion in awarding fees under equitable exception because record did not establish the requisite bad‑faith or exceptional conduct; vacated fee award. |
| Whether precedent (Dunkling / other statutes) supports awarding fees absent explicit statutory language | Prior cases and remedial statutes permit using litigation costs to calculate fines or reimbursements; the court should interpret "expenditures" broadly. | Distinguish Dunkling (fine based on costs, not a fee award) and note that when Legislature intends attorney’s fees it typically says so explicitly. | Court distinguished Dunkling and relied on legislative patterns; found no statutory authorization for fees. |
| Whether remand was required to adjust civil penalty absent fee recovery | Town argued fees were integral to penalty calculation and court could have alternatively based fine on litigation costs. | Brisson argued fee award improper; but penalty and engineering reimbursement valid. | Court affirmed penalty and engineering reimbursement; vacated only attorney’s fees award (no remand to reallocate funds). |
Key Cases Cited
- In re Gadhue, 544 A.2d 1151 (Vt. 1987) (recognizing narrow equitable exception to American Rule for bad‑faith or vexatious conduct)
- Town of Hinesburg v. Dunkling, 711 A.2d 1163 (Vt. 1998) (upholding fine that was based on town’s litigation costs; not an explicit award of attorney’s fees)
- Merlino v. Delaware County, 728 A.2d 949 (Pa. 1999) (statutory "expenses" insufficient to overcome American Rule absent explicit authorization)
- Key Tronic Corp. v. United States, 511 U.S. 809 (1994) (attorney’s fees not recoverable absent clear statutory intent; some lawyer work closely tied to cleanup may be recoverable)
- United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998) (government may recover attorney’s fees where statute broadly authorizes recovery of response/removal costs and policy favors deterrence)
- Agency of Natural Res. v. Lyndonville Sav. Bank & Trust Co., 811 A.2d 1232 (Vt. 2002) (courts may award fees in exceptional bad‑faith cases under inherent equitable powers)