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Supreme Court Vacates Award of Attorney’s Fees in Public Health Hazard Case

In Town of Milton Board of Health v. Armand Brisson, 2016 VT 56 (May 6, 2016), the Vermont Supreme Court vacated an award of attorney’s fees to the town after finding that the award was not authorized by the applicable statute and that the award was not otherwise warranted in an equitable exception to the American Rule that requires all parties to pay their own attorney’s fees.

Issue: Armand Brisson appealed the superior court’s award of attorney’s fees to the Town of Milton that were assessed after more than a year of the Town attempting to get Brisson to address serious structural problems with the two story brick building he owned in Milton. The superior court ultimately issued a decision that included a civil penalty, reimbursement for the Town’s engineering costs, and attorney’s fees.

Holding: The Court held that 18 V.S.A. §130(b)(5), which authorizes a court to order “reimbursement from any person who caused government expenditures for the investigation and mitigation of the public health risk” did not authorize a court to order the payment of attorney’s fees, as the provision itself does not refer to litigation costs. Further, while there is an equitable exception to the American Rule that requires all parties to pay their own attorney’s fees, the exception applies under circumstances where there was bad-faith conduct. As there was no bad-faith conduct in this case, the Court vacated the superior court’s award of attorney’s fees.

Dissent: Dooley, J., dissented, arguing that attorney’s fees actually fall within the language of the statute as a governmental expenditure. He argued that the statute’s use of the words “reimbursement” and “government expenditures” suggest that the Legislature intended local boards of health to be repaid for all expenses incurred, including attorney’s fees.